Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, Parent and each of its subsidiaries shall, except to the extent that UHC shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, licensors, licensees, and others with which it has business dealings. In addition, Parent will promptly notify UHC of any material adverse event involving its business or operations. In addition, except as permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in the Parent Disclosure Letter, without the prior written consent of UHC, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following: (a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements in effect, or policies existing, on the date hereof and as previously disclosed in writing to UHC, or adopt any new severance plan; (c) Transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to Intellectual Property that is owned by, or exclusively licensed to, Parent or one of its subsidiaries, other than non-exclusive licenses in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means any or all of the following and all rights in, arising out of, or associated therewith: (i) all United States, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (iii) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (iv) all industrial designs and any registrations and applications therefor throughout the world; (v) all trade names, URLs, logos, common law trademarks and service marks, trademark and service mark
Appears in 1 contract
Samples: Common Stock and Warrant Agreement (Neoforma Com Inc)
Conduct of Business by Parent. During the period from the date ----------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC Company shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, course in substantially the same manner as heretofore conducted and in substantial compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue subject to good faith disputes over such obligations, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others with which it has significant business dealings. In addition, Parent will promptly notify UHC of any material adverse event involving its business or operations. In addition, except as expressly permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in the Parent Disclosure Letter, without the prior written consent of UHCCompany, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive Declare, set aside, or pay any stock repurchase rightsdividends or make any other distributions (whether in cash, accelerate, amend or change the period of exercisability of options or restricted stock, equity securities or reprice options granted under any employeeproperty) in respect to Parent's capital stock, consultantexcept where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.06(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, director proportional dividend or other stock plans distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.06(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or authorize cash payments in exchange for any options granted under any of such plansdistribution;
(b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements in effectPurchase, redeem, or policies existingotherwise acquire, on the date hereof and as previously disclosed directly or indirectly, any shares of capital stock of Parent or its subsidiaries in writing to UHC, any amounts that would adversely affect Parent's financial condition or adopt any new severance planliquidity;
(c) Transfer or license Effect any amendment to any person or entity or otherwise extend, amend or modify Parent's Certificate of Incorporation;
(d) Engage in any material respect any rights action that would reasonably be expected to Intellectual Property that is owned by, or exclusively licensed to, Parent or one of its subsidiaries, other than non-exclusive licenses in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means any or all of the following and all rights in, arising out of, or associated therewith: (i) all United States, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code or (ii) all inventions interfere with its ability to account for the Merger as a "pooling of interests," whether or not (whether patentable in each case) otherwise permitted by the provisions of this Article IV;
(e) Take any action that would materially delay the consummation of the transactions contemplated hereby; or
(f) Agree in writing or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating otherwise to take any of the foregoing; actions described in Section 4.02 (iiia) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; through (ive) all industrial designs and any registrations and applications therefor throughout the world; (v) all trade names, URLs, logos, common law trademarks and service marks, trademark and service markabove.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Microchip Technology Inc)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC the Company shall otherwise consent in writing, carry on its business business, in all material respects, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes when due due, subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. In addition, Parent will promptly notify UHC of any material adverse event involving its business or operations. In addition, except as permitted by the terms of this Agreement, Agreement and except as contemplated by this Agreement or provided in Article 4 of the Parent Disclosure LetterSchedules, without the prior written consent of UHCthe Company, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements in effect, or policies existing, on the date hereof and as previously disclosed in writing to UHC, or adopt any new severance plan;
(c) Transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Parent Intellectual Property that is owned byProperty, or exclusively licensed to, Parent or one of its subsidiariesenter into grants to future patent rights, other than non-exclusive licenses in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means ;
(c) Declare, set aside or pay any dividends on or all make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(d) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the following and all rights inemployment relationship with any employee pursuant to stock option or repurchase agreements in effect on the date hereof;
(e) Issue, arising out ofdeliver, sell, authorize, pledge or otherwise encumber any shares of capital stock or any securities convertible into shares of capital stock, or associated therewith: subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and/or sale of (i) all United Statesstock options in the ordinary course of business and consistent with past practice, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (ii) all inventions shares of Parent Common Stock pursuant to the exercise of stock options therefor outstanding as of the date of this Agreement or granted pursuant to the foregoing clause (whether patentable or noti), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (iii) all copyrightsshares of Parent Common Stock issuable to participants in the Parent Purchase Plan consistent with the terms thereof.
(f) Cause, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout permit or propose any amendments to the world; (iv) all industrial designs and any registrations and applications therefor throughout the world; (v) all trade names, URLs, logos, common law trademarks and service marks, trademark and service markParent Charter Documents;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Platinum Software Corp)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC Company shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, course in substantially the same manner as heretofore conducted and in substantial compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue subject to good faith disputes over such obligations, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others with which it has business dealingsdealings material to Parent's business. In addition, Parent will promptly notify UHC of any material adverse event involving its business or operations. In addition, except as permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in the Parent Disclosure Letter, without the prior written consent of UHCCompany, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive Except as required by law or pursuant to the terms of a Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements in effectoutstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to UHCCompany, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Transfer Other than in the ordinary course of business consistent with past practices, transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Parent Intellectual Property, or enter into grants to transfer or license to any person future patent rights; PROVIDED that in no event shall Parent license on an exclusive basis or sell any Parent Intellectual Property that is owned by(other than in connection with the abandonment of immaterial Parent Intellectual Property after at least five business days' written notice to Company);
(d) Declare, set aside or exclusively licensed topay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or one of its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course consistent with past practice by Parent with employees hired after the date hereof);
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than non-exclusive licenses (x) the issuance, delivery and/or sale of (i) shares of Parent Common Stock pursuant to the exercise of stock options or warrants outstanding as of the date of this Agreement, and (ii) shares of Parent Common Stock issuable to participants in the ESPP consistent with the terms thereof, (y) the granting of stock options to employees in the ordinary course of business in such amounts and in all other respects and consistent with past practice. "INTELLECTUAL PROPERTY" means practices and with similar vesting terms, and (z) shares of Parent Common Stock in connection with acquisitions completed prior to the date hereof and with acquisitions permitted under Section 4.2(f);
(g) Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or all similar governing instruments of any of its subsidiaries, except as set forth herein);
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the following and all rights in, arising out assets of, or associated therewith: by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments; PROVIDED, THAT Parent shall not be prohibited from (i) all United Statesmaking strategic investments with a value of up to $20,000,000, international and foreign patents and applications therefor and all reissuesPROVIDED, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereofTHAT Parent gives Company prior notice of any such strategic investment with a value of $5,000,000 or more; (ii) all inventions making or agreeing to make any acquisitions the value of which does not exceed 2.5% of Parent's market capitalization per acquisition (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data which value and customer lists, and all documentation market capitalization shall be determined upon the signing of agreements relating to such transaction); or (iii) entering into business development deals in the ordinary course of business;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition (other than through licensing permitted by clause (a)) of property or assets which are not material, individually or in the aggregate, to the business of Parent and its subsidiaries;
(j) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoingforegoing other than in connection with the financing of working capital consistent with past practice;
(k) Except as may be required under Section 5.8(b) and (c), adopt or amend any Parent Plan or any employee stock purchase or employee stock option plan; or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"); pay any special bonus or special remuneration to any director or employee; or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law and except for (i) salary increases in the ordinary course of business consistent with past practice for non-officer employees, (ii) salary increases for officers in an amount not exceeding 10% of such officer's salary on the date hereof and (iii) all copyrightsas set forth on Sechedule 4.1(k);
(i) Pay, copyrights registrations discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the most recent Parent Balance Sheet, or incurred since the date of such financial statements or disclosed in Section 3.8 or 3.9 of the Parent Schedule, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or any of its subsidiaries is a party or of which Parent or any of its subsidiaries is a beneficiary, in the case of both (i) and applications therefor(ii) of this Section 4.2(l), and all other which payment, discharge, satisfaction, waiver, termination, modification, release or failure to enforce has a value to Parent in excess of $3,000,000; PROVIDED, THAT Parent shall provide prior notice to Company of any such action with a value to Parent in excess of $1,000,000;
(m) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any Contract disclosed in 3.16 of the Parent Schedule or waive, delay the exercise of, release or assign any material rights corresponding thereto throughout or claims thereunder without providing prior notice to Company;
(n) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(o) Engage in any action that would reasonably be expected to (i) cause the worldMerger to fail to qualify as a "reorganization" under Section 368(a) of the Code or (ii) interfere with Parent's ability to account for the Merger as a pooling of interests, whether or not (in each case) otherwise permitted by the provisions of this Article IV;
(p) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of Parent or any of its subsidiaries, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(ivq) all industrial designs and Agree in writing or otherwise to take any registrations and applications therefor throughout of the world; actions described in Section 4.2 (va) all trade names, URLs, logos, common law trademarks and service marks, trademark and service markthrough (p) above.
Appears in 1 contract
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC Company shall otherwise consent in writing, carry on its business business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. In addition, Parent will promptly notify UHC of any material adverse event involving its business or operations. In addition, except as expressly permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in the Parent Disclosure Letter, without the prior written consent of UHCCompany, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of warrants or options or restricted stock, or reprice warrants or options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant Declare, set aside or pay any severance dividends on or termination pay to make any officer other distributions (whether in cash, stock, equity securities or employee property) in respect of any capital stock, except pursuant to written agreements in effectfor intercompany dividends or distributions, or policies existingsplit, on combine or reclassify any capital stock or issue or authorize the date hereof and issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, except as previously disclosed set forth in writing to UHC, or adopt any new severance planParent Schedules;
(c) Transfer Cause, permit or license propose any amendments to the Parent charter documents (or similar governing instruments of any person of its subsidiaries) that would have an adverse effect on the rights of holders of Parent Common Stock;
(d) Revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or entity practices;
(e) Engage in any action that would reasonably be expected to cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise extendpermitted by the provisions of this Article IV;
(f) Make any Tax election that, amend individually or modify in the aggregate, is reasonably likely to adversely affect in any material respect any rights to Intellectual Property that is owned by, the Tax liability or exclusively licensed to, Tax attributes of Parent or one any of its subsidiaries, other than non-exclusive licenses subsidiaries or settle or compromise any material income Tax liability; or
(g) Agree in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means any writing or all of the following and all rights in, arising out of, or associated therewith: (i) all United States, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating otherwise to take any of the foregoing; actions described in Sections 4.2 (iiia) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; through (ivf) all industrial designs and any registrations and applications therefor throughout the world; (v) all trade names, URLs, logos, common law trademarks and service marks, trademark and service markabove.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Pharmafrontiers Corp)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC Company shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes Taxes when due subject to good faith disputes over such debts or taxesTaxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, licensors, licensees, and others with which it has business dealings. In addition, Parent will promptly notify UHC Company of any material adverse event involving its business or operations. In addition, except as permitted by the terms of this Agreement, and except as contemplated by this Agreement or the Related Agreements or provided in Part 4.2 of the Parent Disclosure Letter, without the prior written consent of UHCCompany, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements in effect, or policies existing, on the date hereof and as previously disclosed in writing to UHCCompany, or adopt any new severance plan;
(c) Transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Parent Intellectual Property that is owned by, or exclusively licensed to, Parent or one of its subsidiariesProperty, other than non-exclusive licenses in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means ;
(d) Declare, set aside or pay any dividends on or all make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the following employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the grant, issuance, delivery and/or sale of (i) shares of Parent Common Stock pursuant to the exercise of Parent Options outstanding on the date of this Agreement, or granted in accordance with clause (iii) of this Section 4.2(f), (ii) shares of Parent Common Stock issuable to participants in the Parent ESPP consistent with the terms thereof, (iii) Parent Options granted to newly-hired employees in the ordinary course of business in amounts comparable to similarly situated Parent employees, and all rights inin an aggregate amount not to exceed 550,000, arising out none of which Parent Options shall provide for or permit any acceleration of the exercisability thereof in connection with the Merger or any of the transactions contemplated by this Agreement, and (iv) shares of Parent Common Stock issued in connection with acquisitions and commercial transactions permitted under Section 4.2(h) below;
(g) Cause, permit or propose any amendments to its Certificate of Incorporation, Bylaws or other charter documents (or similar governing instruments of any of its subsidiaries), other than an amendment to its Certificate of Incorporation to increase the authorized number of shares of Parent Common Stock;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or associated therewith: by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of Parent, or enter into any material joint ventures, strategic relationships or alliances, or enter into any commercial transaction involving the issuance or potential issuance of equity securities of Parent; provided, that Parent shall not be prohibited hereunder from (x) acquiring EquipMD, Inc. pursuant to the Agreement and Plan of Merger among Parent, Augustacorp, Inc. and EquipMD, Inc. (a true and complete copy of which has been provided to Company) or (y) making or agreeing to make acquisitions, or entering into commercial transactions involving the issuance or potential issuance of Parent Common Stock, all of which together do not involve the issuance or potential issuance of more than 500,000 shares of Parent Common Stock in the aggregate, and none of which acquisitions, agreements or commercial transactions could reasonably be expected to delay the effectiveness of the Registration Statement, the consummation of the Merger or the other transactions contemplated by this Agreement or the Related Agreements; provided, further, that Parent shall provide written notice to Company prior to signing any agreement regarding any such acquisition or transaction;
(i) all United StatesSell, international and foreign patents and applications therefor and all reissueslease, divisionslicense, renewalsencumber or otherwise dispose of any properties or assets which are material, extensionsindividually or in the aggregate, provisionalsto the business of Parent;
(j) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, continuations and continuations-in-part thereof; issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than (i) in connection with the financing of ordinary course trade payables consistent with past practice, (ii) all inventions (whether patentable equipment leasing arrangements or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (iii) all copyrightsin aggregate amount not to exceed $1,000,000;
(i) Adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, copyrights registrations or enter into any employment contract or collective bargaining agreement (other than offer letters and applications thereforletter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will") other than an increase in the number of shares of Parent Common Stock reserved for issuance under the Parent Stock Option Plans or the Parent ESPP, and all or (ii) pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants other rights corresponding thereto throughout than in the world; ordinary course of business, consistent with past practice, or change in any material respect any management policies or procedures;
(iv1) all industrial designs and Make any registrations and applications therefor throughout capital expenditures outside of the world; (v) all trade namesordinary course of business or any capital expenditures in excess of $1,000,000, URLsindividually, logosor $10,000,000, common law trademarks and service marks, trademark and service markin the aggregate;
Appears in 1 contract
Samples: Merger Agreement (Eclipsys Corp)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent and each of its subsidiaries shall, except to the extent that UHC Company shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable material laws and regulations, pay its debts and taxes Taxes when due subject to good faith disputes over such debts or taxesTaxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, licensors, licensees, and others with which it has business dealings. In addition, during that period Parent will promptly notify UHC Company of any material adverse event involving its business or operationsoperations consistent with the agreements contained herein. In addition, except as permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in Schedule 4.2 of the Parent Disclosure Letter, without the prior written consent of UHCCompany, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the ClosingEffective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following:
(a) Waive Declare, set aside or pay any stock repurchase rightsdividends on or make any other distributions (whether in cash, accelerate, amend or change the period of exercisability of options or restricted stock, equity securities or reprice options granted under property) in respect of any employeecapital stock of Parent or split, consultant, director combine or other reclassify any capital stock plans of Parent or issue or authorize cash payments the issuance of any other securities in exchange respect of, in lieu of or in substitution for any options granted under any capital stock of such plansParent;
(b) Grant Purchase, redeem or otherwise acquire, directly or indirectly, any severance shares of capital stock of Parent or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination pay to of the employment relationship with any officer or employee except pursuant to written stock option or purchase agreements in effect, or policies existing, effect on the date hereof and as previously disclosed in writing to UHC, or adopt any new severance planhereof;
(c) Transfer Cause, permit or license propose any amendments to its Certificate of Incorporation, Bylaws or other charter documents (or similar governing instruments of any person or entity or otherwise extend, amend or modify in any material respect any rights to Intellectual Property that is owned by, or exclusively licensed to, Parent or one of its subsidiaries);
(d) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of Parent or enter into any material joint ventures, strategic relationships or alliances; provided, that Parent shall not be prohibited under this clause (h) from (i) making or agreeing to make debt or equity investments which do not exceed (A) the lesser of (x) 20% of the fully diluted ownership of the entity or (y) $10 million, individually, or (B) $100 million, in the aggregate, or (ii) making or agreeing to make acquisitions which do not (A) exceed $200 million per acquisition, (B) exceed $500 million in the aggregate (which valuations shall be determined upon the signing of agreements regarding such transactions), or (C) which could reasonably be expected to delay the Merger or the other transactions contemplated hereby; provided, further, that Parent shall provide written notice to Company prior to signing any agreement regarding any such acquisition;
(e) Enter into any licensing or other agreement with regard to the acquisition, distribution or licensing of any material Intellectual Property other than non-exclusive licenses licenses, distribution or other similar agreements entered into in the ordinary course of business and consistent with past practice. "INTELLECTUAL PROPERTY" means ;
(f) Except as required by GAAP, make any change in accounting methods, principles or all of the following and all rights in, arising out of, practices; or
(g) Agree in writing or associated therewith: (i) all United States, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating otherwise to take any of the foregoing; actions described in Section 4.2 (iiia) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; through (ivf) all industrial designs and any registrations and applications therefor throughout the world; (v) all trade names, URLs, logos, common law trademarks and service marks, trademark and service markabove.
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