Conduct of Business by the Company Pending the Closing. The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1) as set forth in Schedule 5.1, (2) as specifically permitted by this Agreement, (3) as required by Law or Order or (4) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall and shall cause each Company Subsidiary to, conduct its business, in all material respects, in the ordinary course of business consistent with past practice, including, to the extent consistent therewith, using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations. Without limiting the generality of the foregoing, except (a) as expressly permitted by this Agreement, (b) as set forth in the subsection of Schedule 5.1 corresponding to the applicable subsection of this Section 5.1, (c) as required by Law or final Order or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), until the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not and shall not permit any Company Subsidiary to: (a) declare, accrue or pay any dividends on or make any distribution with respect to its outstanding shares (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except dividends and distributions by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary; (b) split, combine, reduce or reclassify any of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction; (c) except as set forth in Schedule 5.1(c) or as required by the terms of this Agreement or any Company Plan in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter: (i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant; (ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies or practices as in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter; (iii) grant, provide, amend or increase the cash or equity compensation payable or to become payable to any of its current or former employees or individual independent contractors; (iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council; (v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice; (vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan; (vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at the level of vice president or above, other than to fill a position of vice president or higher that becomes vacant after the date of this Agreement, subject to the other limitations contained in this Section 5.1(c); or (d) make any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by Law, GAAP or SEC policy; (e) acquire, directly or indirectly (including by merger, consolidation, or acquisition of shares or assets or any other business combination), (i) any corporation, partnership, other business organization or any division thereof, or (ii) any investment in any other Person in an amount excess of $10,000,000 individually or $25,000,000 in the aggregate, including by purchase of capital stock or securities, contributions to capital, property transfers (other than between the Company and a wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company); (f) amend the Articles of Association of the Company or the Charter Documents of any Company Subsidiary, except, in the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f); (g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g)); (h) except as permitted by Section 5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber, or subject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPP, upon the exercise of Company Options or the vesting and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) the incurrence of Indebtedness in an amount not to exceed $25,000,000 in aggregate principal amount and (D) any hedging obligations of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (ii) make any loans or advances to any other Person, other than (A) in wholly-owned Company Subsidiaries, and (B) in respect of travel or other business expenses; (i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets, except for (A) sales of inventory or Company Products, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (B) non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, and (C) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms; (i) settle, pay, discharge or satisfy any Actions other than (A) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet in an amount that is less than the amount reserved or (B) those that do not involve the payment of money greater than the applicable amount set forth on Schedule 5.1(l) and in each case in the foregoing clause (A) and (B), that does not involve the grant of equitable relief or otherwise impose any restriction on the Company’s or any Company Subsidiaries’ business, does not relate to any litigation brought by or on behalf of the Company Shareholders in connection with this Agreement or the Transactions and pursuant to which the Company and the Company’s Subsidiaries receive a full release of claims or (ii) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice; (i) make (except for elections made in the ordinary course of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except in the ordinary course of business consistent with past practice agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes; (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement; (n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter into, modify, amend, waive, release or assign any rights or claims under any other Company Material Contract other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section 5.1, or (iv) enter into any Contract that contains a “take or pay” or similar obligation; (o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate; (p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal or any action prohibited by this Section 5.1; or (q) offer or agree, in writing or otherwise, to take any or authorize any of the foregoing actions.
Appears in 1 contract
Conduct of Business by the Company Pending the Closing. (a) The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as set forth in Section 5.1(a) of the Company Disclosure Letter, (ii) as expressly required or expressly contemplated by this Agreement, (iii) as required by applicable Law or (iv) as consented to in writing by Broadcom, the Company shall, and shall cause each Company Subsidiary to, conduct its business in the ordinary course of business consistent with past practice, including by using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers, employees and other Persons with whom it and they have material business relations.
(b) The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1) as set forth in Schedule 5.1Section 5.1(b) of the Company Disclosure Letter, (2) as specifically permitted expressly required or expressly contemplated by this AgreementAgreement (other than as required or contemplated by Section 5.1(a)), (3) as required by applicable Law or Order or (4) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Broadcom, the Company shall and shall cause each Company Subsidiary tonot, conduct its business, in all material respects, in the ordinary course of business consistent with past practice, including, to the extent consistent therewith, using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations. Without limiting the generality of the foregoing, except (a) as expressly permitted by this Agreement, (b) as set forth in the subsection of Schedule 5.1 corresponding to the applicable subsection of this Section 5.1, (c) as required by Law or final Order or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), until the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not and shall not permit any Company Subsidiary to:to (and no Company Subsidiary shall):
(ai) amend its Governing Documents, other than immaterial amendments of the Governing Documents of any Company Subsidiary;
(ii) authorize, declare, accrue set aside for payment or pay any dividends on or make any distribution or payment with respect to its outstanding shares of capital stock or other equity interests (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except for (A) dividends and distributions paid or made by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary;
(b) split, combine, reduce or reclassify any of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction;
(c) except as set forth in Schedule 5.1(c) or as required by the terms of this Agreement or any Company Plan in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter:
(i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant;
(ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies or practices as in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter;
(iii) grant, provide, amend or increase the cash or equity compensation payable or to become payable to any of its current or former employees or individual independent contractors;
(iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council;
(v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice;
(vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan;
(vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at the level of vice president or above, other than to fill a position of vice president or higher that becomes vacant after the date of this Agreement, subject to the other limitations contained in this Section 5.1(c); or
(d) make any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by Law, GAAP or SEC policy;
(e) acquire, directly or indirectly (including by merger, consolidation, or acquisition of shares or assets or any other business combination), (i) any corporation, partnership, other business organization or any division thereof, or (ii) any investment in any other Person in an amount excess of $10,000,000 individually or $25,000,000 in the aggregate, including by purchase of capital stock or securities, contributions to capital, property transfers (other than between the Company and a wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company);
(f) amend the Articles of Association of the Company or the Charter Documents of any Company Subsidiary, except, in the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f);
(g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g));
(h) except as permitted by Section 5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber, or subject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPP, upon the exercise of Company Options or the vesting and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) the incurrence of Indebtedness in an amount not to exceed $25,000,000 in aggregate principal amount and (D) any hedging obligations of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (ii) make any loans or advances to any other Person, other than (A) in wholly-owned Company Subsidiaries, and (B) regular quarterly cash dividends payable by the Company in respect of travel or other business expenses;
(i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets, except for (A) sales of inventory or Company Products, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (B) non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, and (C) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms;
(i) settle, pay, discharge or satisfy any Actions other than (A) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet in an amount that is less than the amount reserved or (B) those that do not involve the payment of money greater than the applicable amount set forth on Schedule 5.1(l) and in each case in the foregoing clause
(A) and (B), that does not involve the grant of equitable relief or otherwise impose any restriction on the Company’s or any Company Subsidiaries’ business, does not relate to any litigation brought by or on behalf of the Company Shareholders in connection with this Agreement or the Transactions and pursuant to which the Company and the Company’s Subsidiaries receive a full release of claims or (ii) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice;
(i) make (except for elections made in the ordinary course of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except Shares in the ordinary course of business consistent with past practice agree to in an extension or waiver amount not exceeding $0.57 per Company Share in any fiscal quarter and with record dates set forth in Section 5.1(b)(ii) of the statute of limitations with respect to a material amount of Taxes; (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement;Company Disclosure Letter;3
(n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter intosplit, modifycombine, amendsubdivide, waivereduce or reclassify any of its capital stock or other equity interests, release or assign any rights issue or claims under authorize the issuance of any other Company Material Contract securities in respect of, in lieu of or in substitution for, shares of its capital stock or other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section 5.1, or equity interests;
(iv) enter into any Contract that contains a “take or pay” or similar obligation;
(o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate;
(p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal the voting of its capital stock or any action prohibited by this Section 5.1; or
(q) offer or agree, in writing or otherwise, to take any or authorize any of the foregoing actions.other equity interest;
Appears in 1 contract
Samples: Agreement and Plan of Merger (Broadcom Cayman L.P.)
Conduct of Business by the Company Pending the Closing. The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.18.1, except (1) as set forth in Schedule 5.15.1, (2) as specifically permitted by this Agreement, (3) as required by Law or Order or (4) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall and shall cause each Company Subsidiary to, conduct its business, in all material respects, in the ordinary course of business consistent with past practice, including, to the extent consistent therewith, using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations. Without limiting the generality of the foregoing, except (a) as expressly permitted by this Agreement, (b) as set forth in the subsection of Schedule 5.1 5.1 corresponding to the applicable subsection of this Section Section 5.1, (c) as required by Law or final Order or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), until the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section Section 8.1, the Company shall not and shall not permit any Company Subsidiary to:
(a) declare, accrue or pay any dividends on or make any distribution with respect to its outstanding shares (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except dividends and distributions by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary;
(b) split, combine, reduce or reclassify any of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction;
(c) except as set forth in Schedule 5.1(c) or as required by the terms of this Agreement or any Company Plan in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter:
(i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant;
(ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies or practices as in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter;
(iii) grant, provide, amend or increase the cash or equity compensation payable or to become payable to any of its current or former employees or individual independent contractors;
(iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council;
(v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice;
(vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan;
(vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at the level of vice president or above, other than to fill a position of vice president or higher that becomes vacant after the date of this Agreement, subject to the other limitations contained in this Section 5.1(c); or
(d) make any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by Law, GAAP or SEC policy;
(e) acquire, directly or indirectly (including by merger, consolidation, or acquisition of shares or assets or any other business combination), (i) any corporation, partnership, other business organization or any division thereof, or (ii) any investment in any other Person in an amount excess of $10,000,000 individually or $25,000,000 in the aggregate, including by purchase of capital stock or securities, contributions to capital, property transfers (other than between the Company and a wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company);
(f) amend the Articles of Association of the Company or the Charter Documents of any Company Subsidiary, except, in the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f);
(g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g));
(h) except as permitted by Section 5.1(c5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber, or subject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPP, upon the exercise of Company Options or the vesting and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) the incurrence of Indebtedness in an amount not to exceed $25,000,000 in aggregate principal amount and (D) any hedging obligations of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (ii) make any loans or advances to any other Person, other than (A) in wholly-owned Company Subsidiaries, and (B) in respect of travel or other business expenses;
(i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets, except for (A) sales of inventory or Company Products, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (B) non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, and (C) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms;
(i) settle, pay, discharge or satisfy any Actions other than (A) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet in an amount that is less than the amount reserved or (B) those that do not involve the payment of money greater than the applicable amount set forth on Schedule 5.1(l) and in each case in the foregoing clause
clause (A) and (B), that does not involve the grant of equitable relief or otherwise impose any restriction on the Company’s or any Company Subsidiaries’ business, does not relate to any litigation brought by or on behalf of the Company Shareholders in connection with this Agreement or the Transactions and pursuant to which the Company and the Company’s Subsidiaries receive a full release of claims or (ii) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice;
(i) make (except for elections made in the ordinary course of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except in the ordinary course of business consistent with past practice agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes; (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement;
(n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv(xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv(iv), (vii(vii), (ix), (xii), (xiii) or (xiv) of Section Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter into, modify, amend, waive, release or assign any rights or claims under any other Company Material Contract other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section Section 5.1, or (iv) enter into any Contract that contains a “take or pay” or similar obligation;
(o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate;
(p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal or any action prohibited by this Section 5.1; or
(q) offer or agree, in writing or otherwise, to take any or authorize any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Nvidia Corp)
Conduct of Business by the Company Pending the Closing. The Company agrees that between (a) From and after the date execution of this Agreement and until the earlier of the Effective Time or and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1) as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Schedule 5.1Section 5.1 of the Company Disclosure Letter, (2) as specifically permitted by this Agreement, (3) as required by Law or Order or (4) as consented to in writing by with the prior written consent of Parent (which such consent shall not to be unreasonably withheld, delayed conditioned or conditioneddelayed), the Company shall shall, and shall cause each Company Subsidiary of its Subsidiaries to, conduct its business, business in the ordinary course consistent with past practice in all material respects; provided, in however, that no action by the ordinary course Company or its Subsidiaries with respect to matters specifically addressed by any provision of business consistent with past practice, including, to the extent consistent therewith, using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations. Without limiting the generality Section 5.1(b) shall be deemed a breach of the foregoing, except (a) as expressly permitted by this Agreement, sentence unless such action would constitute a breach of such relevant provision of Section 5.1(b).
(b) as set forth in At all times from and after the subsection of Schedule 5.1 corresponding to the applicable subsection execution of this Section 5.1, (c) as required by Law or final Order or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), Agreement until the earlier of the Effective Time or and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Section 5.1 of the Company Disclosure Letter, or with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company:
(i) shall not not, and shall not permit any Company Subsidiary of its Subsidiaries that is not wholly owned to:
(a) declare, accrue authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares stock or other securities of the Company or any Company Subsidiaryits Subsidiaries), except (A) that the Company may continue to pay regular quarterly cash dividends on the Company Shares and Company Equity Awards of not more than $0.28 per share per quarter (subject to annual adjustment in a manner consistent with past practice by the Company Board of Directors), consistent with past practice as to timing of declaration, record date and payment date, (B) that the Company may pay dividends on the Company Preferred Shares to the extent required by the Certificate of Designations for such Company Preferred Shares and (C) dividends and distributions paid or made on a pro rata basis by a wholly owned Company Subsidiary to its Subsidiaries in the Company or another wholly owned Company Subsidiaryordinary course consistent with past practice;
(bii) shall not, and shall not permit any of its Subsidiaries to, split, combine, reduce combine or reclassify any of its share capitalcapital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of the Company Subsidiary that which remains a wholly owned Company Subsidiary after consummation of such transaction;
(c) except as set forth in Schedule 5.1(c) transaction or as required permitted by Section 5.1(b)(iv) (unless such transaction would be reasonably expected to have a material adverse Tax consequence on Parent and the terms of this Agreement or any Company Plan in effect on Parent Subsidiaries after the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter:
(i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant;
(ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies or practices as in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure LetterClosing);
(iii) grantshall not, provide, amend or increase the cash or equity compensation payable or to become payable to and shall not permit any of its current Subsidiaries to enter into agreements with respect to or former employees consummate (other than pursuant to Contracts in effect as of the date hereof that have been previously disclosed to Parent prior to the date hereof), any acquisitions of an equity interest in or individual independent contractorsthe assets of any Person or any business or division thereof (including by acquisition of Intellectual Property), or any mergers, consolidations or business combinations, that in any of the foregoing cases would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions or that would reasonably be expected to have a material adverse Tax consequence on Parent and its Subsidiaries after the Closing;
(iv) establishshall not, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council;
(v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice;
(vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan;
(vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at the level of vice president or above, other than to fill a position of vice president or higher that becomes vacant after the date of this Agreement, subject to the other limitations contained in this Section 5.1(c); or
(d) make any material change in its financial accounting policies or procedures or and shall not permit any of its methods of reporting incomeSubsidiaries to, deductions or other material items for financial accounting purposes, except as required by Law, GAAP or SEC policy;
(e) acquire, directly or indirectly (including by merger, consolidation, or acquisition of shares or assets or any other business combination), (i) any corporation, partnership, other business organization or any division thereof, or (ii) any investment in any other Person in an amount excess of $10,000,000 individually or $25,000,000 in the aggregate, including by purchase of capital stock or securities, contributions to capital, property transfers (other than between the Company and a wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company);
(f) amend the Articles of Association of the Company or the Charter Documents of any Company Subsidiary, except, in the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f);
(g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g));
(h) except as permitted by Section 5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber, or subject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPP, upon the exercise of Company Options or the vesting and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (iA) acquisitions of Company Shares tendered by holders of Company Equity Awards and Company Deferred Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iiiB) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among the Company’s wholly owned Company Subsidiaries, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) acquisitions or repurchases of Company Shares pursuant to (and within the incurrence of Indebtedness in limitations of) the Company’s previously announced share repurchase plan, whether pursuant to an amount not to exceed $25,000,000 in aggregate principal amount and accelerated share repurchase plan, a “10b5-1 plan”, other open market purchases or otherwise, (D) stock fund transactions under Company Benefit Plans that are qualified or supplemental savings plans, or (E) redemptions of Company Preferred Shares to the extent required by the Certificate of Designations for such Company Preferred Shares;
(v) shall not amend the Company Governing Documents in any hedging obligations manner that would adversely affect the consummation of the Transactions;
(vi) [reserved];
(vii) shall not, and shall not permit any of its Subsidiaries to, issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares of its capital stock, voting securities or other equity interest in the Company or any Company Subsidiary in Subsidiaries or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares of capital stock, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, or take any action to cause to be exercisable any otherwise unexercisable Company Stock Option under any existing Company Equity Plan (except as otherwise provided by the ordinary course express terms of business consistent with past practice; (ii) make any loans or advances to any other Personoptions outstanding on the date hereof), other than (A) in wholly-owned issuances of Company Subsidiaries, and (B) Shares in respect of travel any exercise of Company Stock Options or other business expenses;
(i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge the vesting or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any settlement of its properties, rights or assets, except for (A) sales of inventory Company Equity Awards or Company Products, Deferred Awards outstanding on the date hereof or dispositions of obsolete or worthless equipment, in as may be granted after the ordinary course of businessdate hereof, (B) non-exclusive licenses grants of Intellectual Property Company Equity Awards or Company Deferred Awards, in each case, in the ordinary course of business consistent with past practice, (C) withholding of Company Shares to satisfy Tax obligations pertaining to the exercise of Company Stock Options or the vesting or settlement of Company Equity Awards or Company Deferred Awards or to satisfy the exercise price with respect to Company Stock Options or to effectuate an optionee direction upon exercise, (D) stock fund transactions under Company Benefit Plans that are qualified or supplemental savings plans and (CE) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms;
(i) settle, pay, discharge or satisfy any Actions other than (A) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet in an amount that is less than the amount reserved or (B) those that do not involve the payment of money greater than the applicable amount set forth on Schedule 5.1(l) and in each case in the foregoing clause
(A) and (B), that does not involve the grant of equitable relief or otherwise impose any restriction on the Company’s or any Company wholly owned Subsidiaries’ business, does not relate to any litigation brought by or on behalf of the Company Shareholders in connection with this Agreement or the Transactions and pursuant to which the Company and the Company’s Subsidiaries receive a full release of claims or (ii) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice;; and
(iviii) make (except for elections made in the ordinary course shall not, and shall not permit any of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except in the ordinary course of business consistent with past practice agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes; (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement;
(n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related its Subsidiaries to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter into, modify, amend, waive, release or assign any rights or claims under any other Company Material Contract other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section 5.1, or (iv) enter into any Contract that contains a “take or pay” or similar obligation;
(o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate;
(p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal or any action prohibited by this Section 5.1; or
(q) offer or agree, in writing or otherwise, to take any or authorize any of the foregoing actions.
(c) Nothing contained in this Agreement shall give Parent, directly or indirectly, any right to control or direct the operations of the Company or any of its Subsidiaries prior to the Effective Time. Prior to the Effective Time, the Company Board of Directors and management of the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Company and its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Allergan PLC)
Conduct of Business by the Company Pending the Closing. The Company agrees that that, between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1Time, except (1) as set forth in Schedule 5.1Section 5.1 of the Company Disclosure Schedule, (2) as specifically permitted or contemplated by any other provision of this Agreement, (3) Agreement or as required by Law applicable Law, or Order or (4) as consented to Parent shall otherwise agree in writing by Parent (which consent shall not be unreasonably withheldconditioned, delayed withheld or conditioneddelayed), the Company shall will, and shall will cause each Company Subsidiary toto (it being understood that in no event shall the Company’s participation in the negotiation (including activities related to due diligence), execution, delivery, public announcement or pendency of this Agreement or any of the transactions contemplated herein, or any actions taken in compliance herewith (including the impact thereof on the relationships of the Company or the Company Subsidiaries with customers, suppliers, distributors, consultants, employees or independent contractors or other third parties
(a) conduct its business, in all material respects, operations substantially in the ordinary course of business consistent with past practice, including, to the extent consistent therewith, using practice and (b) use its commercially reasonable efforts to preserve substantially intact its business organization and their present business organizations goodwill and to preserve its and their present relationships with customerscustomers and suppliers; provided, suppliers that, notwithstanding the foregoing or anything to the contrary in this Section 5.1, prior to the Effective Time the Company and other Persons with whom it and they have material business relationsthe Company Subsidiaries may use available unrestricted cash to pay dividends to their respective equity holders, to repay any Indebtedness of the Company or any Company Subsidiary, or to pay any Company Transaction Expenses. Without limiting the generality of the foregoing, except (a) as expressly permitted by this Agreement, (b) as set forth in Section 5.1 of the subsection of Schedule 5.1 corresponding to the applicable subsection Company Disclosure Schedule, as permitted or contemplated by any other provision of this Section 5.1, (c) Agreement or as required by Law applicable Law, the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or final Order indirectly, do, or (d) as consented agree to in writing by do, any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheldconditioned, delayed withheld or conditioned)delayed):
(i) amend its articles of incorporation or bylaws or equivalent organizational documents;
(ii) issue or authorize the issuance of any shares of capital stock of, until the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1other Equity Interests in, the Company shall not and shall not permit or any Company Subsidiary to:
(a) declareof any class, accrue or pay securities convertible or exchangeable or exercisable for any dividends on or make any distribution with respect to its outstanding shares (whether in cash, assets, shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any Company Subsidiary), except dividends and distributions by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary;
(bother than (a) split, combine, reduce or reclassify any of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction;
(c) except as set forth in Schedule 5.1(c) or as required by the terms of this Agreement or any Company Plan in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter:
(i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant;
(ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies or practices as in effect on the date requirements of this Agreement and disclosed on Section 3.10(a) contracts of the Company Disclosure Letter;
(iii) grant, provide, amend or increase the cash or equity compensation payable or to become payable to any of its current or former employees or individual independent contractors;
(iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council;
(v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice;
(vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan;
(vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at and of the level of vice president or aboveCompany Benefit Plans, other than to fill a position of vice president or higher that becomes vacant after in each case as in existence on the date of this Agreement, subject and (b) pursuant to the vesting and/or exercise of Company SARs or the terms of any Restricted Stock Unit agreement, conversion rights (including conversion rights of Company Preferred Stock) and other limitations contained contractual rights that are (i) in existence on the date on this Section 5.1(cAgreement or (ii) granted or issued after the date of this Agreement in the ordinary course of business or pursuant to clause (a) of this parenthetical); or
(d) make any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by Law, GAAP or SEC policy;
(eiii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company or any Company Subsidiary (collectively, “Company Transfers”), other than (a) Company Transfers in the ordinary course of business, and (b) Company Transfers of property and/or assets with a fair market value not greater than $500,000 in the aggregate;
(iv) other than in the case of Company Subsidiaries and other than exercises of Company SARs, or issuance of shares under Restricted Stock Unit agreements, reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly indirectly, any of its capital stock, other Equity Interests or other securities;
(v) acquire (including by merger, consolidation, or acquisition of shares stock or assets) any interest in any person or all or substantially all of the assets of any person, other than acquisitions of an interest in any person or assets for a purchase price not greater than $250,000 in the aggregate;
(vi) incur any indebtedness for borrowed money, issue any debt securities, or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the indebtedness of any person (other than a wholly owned Company Subsidiary) for borrowed money, except for (a) indebtedness incurred under the Company’s existing credit facilities as may be amended from time to time, (b) indebtedness for borrowed money in a principal amount not in excess of $15,000,000 in the aggregate for the Company and the Company Subsidiaries taken as a whole, (c) indebtedness owing by any wholly owned Company Subsidiary to the Company or any other wholly owned Company Subsidiary, (d) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed $15,000,000, (e) indebtedness for borrowed money incurred with respect to acquisitions permitted by Section 5.1(v) and (f) ordinary advances to employees for expenses;
(vii) make any investment in or contribution, advance or loan to any person (other than investments, contributions or advances, or commitments with respect thereto less than $100,000 in the aggregate);
(viii) make any change in accounting policies or procedures, other than in the ordinary course of business combinationconsistent with past practice or except as required by changes in GAAP, by applicable Law or by a Governmental Authority;
(ix) adopt or amend any Company Benefit Plan in any material respect, increase in any material manner the compensation or fringe benefits of any director, officer or employee of the Company or pay any material benefit not provided for by any existing Company Benefit Plan, in each case except (a) as reasonably necessary to comply with applicable Law, (b) in the ordinary course of business (including to address the requirements of written agreements or Company Material Contracts in existence on the date of this Agreement), (ic) in connection with entering into any corporation, partnership, other business organization retention agreements or programs determined by the Board of Directors of the Company (or any division committee thereof) to be reasonably necessary in order to maintain its business operations prior to, or (ii) and extending through, the Effective Time; provided, that any investment in any other Person in an amount excess of payments thereunder shall not exceed $10,000,000 individually or $25,000,000 400,000 in the aggregate, including by purchase (d) general salary increases in the ordinary course of capital stock business, (e) the termination or securitiesamendment of any Company Benefit Plan that may be subject to Code Section 409A consistent with Code Section 409A and any guidance issued thereunder, contributions or (f) that do not materially increase the cost to capital, property transfers (other than between the Company and a wholly owned Subsidiary of the Company or between wholly owned Subsidiaries any Company Subsidiary of maintaining the Company)applicable Company Benefit Plan;
(f) amend the Articles of Association of the Company or the Charter Documents of any Company Subsidiary, except, in the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f);
(gx) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalizationrestructuring, restructuring recapitalization or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries Subsidiary (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g));
(h) except as permitted by Section 5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber, or subject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPP, upon the exercise of Company Options or the vesting and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries Mergers or among wholly owned Company Subsidiaries);
(xi) except as reasonably necessary to comply with applicable labor Law, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness enter into any collective bargaining agreement with a person that is not set forth on Section 3.11.1 of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) the incurrence of Indebtedness in an amount not to exceed $25,000,000 in aggregate principal amount and (D) any hedging obligations of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (ii) make any loans or advances to any other Person, other than (A) in wholly-owned Company Subsidiaries, and (B) in respect of travel or other business expenses;
(i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets, except for (A) sales of inventory or Company Products, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (B) non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, and (C) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms;
(i) settle, pay, discharge or satisfy any Actions other than (A) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet in an amount that is less than the amount reserved or (B) those that do not involve the payment of money greater than the applicable amount set forth on Schedule 5.1(l) and in each case in the foregoing clause
(A) and (B), that does not involve the grant of equitable relief or otherwise impose any restriction on the Company’s or any Company Subsidiaries’ business, does not relate to any litigation brought by or on behalf of the Company Shareholders in connection with this Agreement or the Transactions and pursuant to which the Company and the Company’s Subsidiaries receive a full release of claims or (ii) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice;
(i) make (except for elections made in the ordinary course of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except in the ordinary course of business consistent with past practice agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes; (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement;
(n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter into, modify, amend, waive, release or assign any rights or claims under any other Company Material Contract other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section 5.1, or (iv) enter into any Contract that contains a “take or pay” or similar obligation;
(o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate;
(p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal or any action prohibited by this Section 5.1Disclosure Schedule; or
(qxii) offer authorize or agree, in writing enter into any agreement or otherwise, otherwise make any commitment to take any or authorize do any of the foregoing actionsforegoing.
Appears in 1 contract
Conduct of Business by the Company Pending the Closing. The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1a) as set forth in Schedule 5.1, (2b) as specifically permitted by required pursuant to this Agreement, (3c) as may be required by Law or Order or (4d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall and shall cause each Company Subsidiary to, conduct its business, businesses in all material respects, respects in the ordinary course of business consistent with past practice, including, to . To the extent consistent therewithwith the foregoing, using commercially the Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships maintain existing relations with material customers, suppliers suppliers, distributors, employees and other Persons with whom it and they the Company or the Company Subsidiaries have material business relationsrelationships. Without limiting the generality of the foregoing, except (a) as expressly set forth in Schedule 5.1, (b) as required pursuant to or permitted by this Agreement, (b) as set forth in the subsection of Schedule 5.1 corresponding to the applicable subsection of this Section 5.1, (c) as may be required by Law or final Order or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), until the Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not not, and shall not permit any Company Subsidiary to:
(a) declare, accrue amend its certificate of incorporation or pay any dividends on bylaws or make any distribution with respect to its outstanding shares (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except dividends and distributions by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiaryequivalent organizational documents;
(b) split, combine, reduce subdivide or reclassify any shares of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation capital stock of such transactionthe Company;
(c) except as declare, authorize, set forth aside, make or pay any dividend or other distribution payable in Schedule 5.1(c) cash, stock or as required by the terms of this Agreement property (or any Company Plan in effect on the date of this Agreement and disclosed on Section 3.10(acombination thereof) of the Company Disclosure Letter:
(i) grant, provide, amend or increase any retention or change in control payments or benefits to any employee or consultant;
(ii) grant, provide, amend or increase any severance payments or benefits to any employee or consultant, except with respect to employees, severance pursuant to the Company’s generally applicable severance policies capital stock or practices as in effect on the date of this Agreement and disclosed on Section 3.10(a) of the Company Disclosure Letter;
(iii) grant, provide, amend or increase the cash or equity compensation payable or enter into any agreement with respect to become payable to any voting of its current or former employees or individual independent contractors;
(iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or any other labor-related agreement with any labor union, labor organization or works council;
(v) establish, adopt, enter into, amend or terminate any Company Plan (or any arrangement that would be a Company Plan if in effect on the date hereof), capital stock other than ordinary course annual renewals of or modifications to Company Plans that are health or welfare plans consistent with past practice;
(vi) accelerate the vesting or payment date of any Company Equity Awards or accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan;
(vii) hire or retain any person for employment or to be a consultant with the Company or any Company Subsidiary at the level of vice president or above, other than to fill a position of vice president or higher that becomes vacant after the date of this Voting Agreement, subject to the other limitations contained in this Section 5.1(c); or.
(d) make redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposesEquity Interests, except (i) from holders of Company Options in full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of the Company Options to the extent required or permitted under the terms of such Company Options or (ii) only from former employees, directors and consultants in accordance with written agreements in effect as required by Law, GAAP or SEC policyof the date hereof providing for the repurchase of shares at their original issue price in connection with the terms thereof;
(e) issue, sell, grant, pledge, deliver, transfer, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or grant any Company Options under the Company Equity Plans or warrants, calls, commitments or rights of any kind to acquire, directly or indirectly (including by merger, consolidation, or acquisition of any shares or assets or any other business combination), (i) any corporation, partnership, other business organization or any division thereof, or (ii) any investment in any other Person in an amount excess of $10,000,000 individually or $25,000,000 in the aggregate, including by purchase of capital stock of any class, or securitiesgrant to any Person any right the value of which is based on the value of Shares or other capital stock, contributions to capital, property transfers (other than between 31344360_15 the Company and a wholly owned Subsidiary issuance of Shares reserved for issuance on the date hereof pursuant to the exercise of the Company Options or between wholly owned Subsidiaries granted after the date hereof in compliance with the terms of the Company)Agreement;
(f) amend the Articles acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of Association related transactions any Equity Interests in any Person or any business or division of any Person or all or substantially all of the Company or the Charter Documents assets of any Company Subsidiary, exceptPerson (or business or division thereof), in each case, that is material to the case of Company Subsidiaries, for amendments that are advisable or necessary to dissolve the Company Subsidiaries set forth in Schedule 5.1(f)Company;
(g) adopt a plan of complete or partial liquidationtransfer, dissolutionlease, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any of the Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company and the Company Subsidiaries (other than the Merger or dissolution of the Company Subsidiaries set forth in Schedule 5.1(g));
(h) except as permitted by Section 5.1(c), issue, deliver, grantlicense, sell, mortgage, pledge, dispose of or encumberof, or subject to encumber any Lien (other than Permitted Liens) any shares of its material assets, in a single transaction or voting securities series of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, or any rights, warrants or options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance unitsrelated transactions, other than (i) issuances of Company Shares in respect of the exercise of purchase rights under the Company ESPPsales, upon the exercise of Company Options or the vesting leases and settlement of Company RSUs, in each case in accordance with their respective terms and the terms of this Agreement, and (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(i) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries;
(j) (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (B) guarantees by the Company of Indebtedness of wholly owned Company Subsidiaries or guarantees by wholly owned Company Subsidiaries of Indebtedness of the Company or any wholly owned Company Subsidiary, which Indebtedness is incurred in compliance with this clause (j), (C) the incurrence of Indebtedness in an amount not to exceed $25,000,000 in aggregate principal amount and (D) any hedging obligations of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (ii) make any loans or advances to any other Person, other than (A) in wholly-owned Company Subsidiaries, and (B) in respect of travel or other business expenses;
(i) allow to lapse, encumber, sell, lease, license, transfer, assign, exchange, swap, abandon, pledge or otherwise waive or dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets, except for (A) sales of inventory or Company Products, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (B) non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, and (C) transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; or (ii) release any Core Technology dispositions of assets no longer used in the operation of the business, and (iii) sales, leases and licenses that is are not material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license terms or use any Open Source Material in such a way that would require the release of any Core Technology that is material to the business of the Company and the Company Subsidiaries, taken as a whole, under any Open Source Material license termsCompany;
(h) (i) settle, pay, discharge incur or satisfy assume any Actions other than (A) the payment, discharge long-term or satisfaction, short-term indebtedness except short-term indebtedness made in the ordinary course of business and consistent with past practice, or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of liabilities reflected any other Person (other than the Company and any Company Subsidiary) for borrowed money; (iii) make any loans, advances or reserved against capital contributions to, or investments in, any other Person other than in the Most Recent Company Balance Sheet ordinary course consistent with past practices; or (iv) cancel any material indebtedness or waive any claims or rights of substantial value, in each case, other than in the ordinary course of business; or (v) enter into any swap or hedging transaction or other derivative agreements other than in the ordinary course of business;
(i) except (i) as required by the terms of any Benefit Plan, agreement or other contract in effect on the date hereof, or (ii) to the extent necessary to comply with, or satisfy an amount that is less than exemption from, Section 409A of the amount reserved Code without increasing the benefits provided to any Person, (A) increase the compensation or other benefits payable or to become payable to officers, directors or employees of the Company, (B) those that do not involve grant any officer, director, or employee of the payment Company any material increase in severance or termination pay, (C) enter into any employment, consulting, severance or termination agreement with any officer, director or senior employee of money greater than the applicable amount set forth on Schedule 5.1(lCompany, (D) establish, adopt or enter into any collective bargaining agreement or Benefit Plan, or (E) accelerate any rights or benefits, or make any material determinations, under any Benefit Plan; provided, however, the foregoing clauses (A), (B) and (C) shall not restrict the Company from entering into or making available to newly hired employees or to employees in the context of promotions, provided such employees are not officers or directors or senior employees of the Company, in each case in the foregoing clauseordinary course, plans, agreements, benefits and compensation arrangements;
(Aj) incur any capital expenditures or any obligations or liabilities in respect thereof in excess of $125,000, in the aggregate, except those contemplated in the capital expenditures budgets for the Company previously made available to Parent; 31344360_15
(k) enter into any agreement or arrangement that materially limits or otherwise materially restricts the Company, or upon completion of the Transactions, Parent or its Subsidiaries or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area material to the business or operations of Parent or any of its Subsidiaries;
(l) change any of the accounting methods used by it materially affecting its assets, liabilities or business, except for such changes required by GAAP, applicable Laws or any Government Entity;
(m) except as required by Law, make, revise or amend any material Tax election, settle or compromise any Tax liability, including via any voluntary disclosure agreement, file any amended Tax Return, prepare or file any Tax Return in a manner materially inconsistent with past practice, surrender any right to claim a material Tax refund, consent to any extension or consent to any waiver of the limitation period applicable to any Tax claim or assessment, or change any annual Tax accounting period;
(n) pay, discharge, compromise or settle any material claim or material litigation, in each case made or pending against the Company, or any of its officers and directors in their capacities as such, other than the settlement of claims or litigation in the ordinary course of business;
(i) enter into, terminate, materially modify, renew or waive any material provision of any Company Material Contract; and (B), ii) enter into any new contract or agreement that does not involve contains a change in control provision in favor of the grant of equitable relief other party or parties thereto or would otherwise impose any restriction on the Company’s require a payment to or any Company Subsidiaries’ business, does not relate give rise to any litigation brought by rights to such other party or on behalf parties in connection with the Transactions;
(p) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company Shareholders in connection (other than the Merger); and
(q) elect not take any material action with this Agreement respect to the maintenance of any Company IP that is material to the conduct of the business, enter into any license or the Transactions and pursuant transfer agreement granting or transferring to which the a third party an exclusive right to use any such Company and the Company’s Subsidiaries receive a full release of claims IP, grant any material refunds, credits, rebates or (ii) institute any Action other allowances by the Company or Company Subsidiaries to any Company Subsidiarysupplier, vendor or distributor, in each case, other than for collections in the ordinary course of business consistent with past practice;
(i) make (except for elections made in the ordinary course of business consistent with past practice) or change any material Tax election; (ii) change any Tax accounting period with respect to a material Tax or material method of Tax accounting; (iii) file any material amended Tax Return; (iv) settle or compromise any audit or proceeding relating to a material Tax or a material amount of Taxes; (v) except in the ordinary course of business consistent with past practice agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes; (vir) enter into any “closing written agreement” within the meaning of Section 7121 of the Code (, contract, commitment or any similar provision of state, local, or non-U.S. Law) with respect arrangement to any material Tax or surrender any right to claim a material Tax refund; or (vii) obtain a Tax pre-ruling other than as expressly contemplated by this Agreement;
(n) (i) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), (ii) modify or amend (or take any other action that would require disclosure under the Exchange Act with respect to) to the extent related to, or waive, release or assign any rights or claims under, any Company Material Contract described in subsections (iv), (vii), (ix), (xii), (xiii) or (xiv) of Section 3.17(a), or other than in the ordinary course of business any other Company Material Contract (subject to the other restrictions of this Section 5.1), (iii) enter into, modify, amend, waive, release or assign any rights or claims under any other Company Material Contract other than in the ordinary course of business consistent with past practice, but subject to any other restrictions imposed by this Section 5.1, or (iv) enter into any Contract that contains a “take or pay” or similar obligation;
(o) make any capital expenditures, except for (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, copies of which have been made available to Parent or (ii) other capital expenditures in the ordinary course of business consistent with past practice not to exceed the Company’s anticipated 2019-2020 capital expenditure amount set forth on Schedule 5.1(o) by $5,000,000 in the aggregate;
(p) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders, in each case with respect to a Competing Proposal or any action prohibited by this Section 5.1; or
(q) offer or agree, in writing or otherwise, to take any or authorize do any of the foregoing actionsforegoing, or authorize in writing any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Presstek Inc /De/)
