Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time: (a) the Company shall conduct its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements; (b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Closing; (c) the Company shall promptly notify Acquirer of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied. 4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):
Appears in 1 contract
Samples: Merger Agreement
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the CompanyCompany and its Subsidiaries. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) Time and except to the extent that Parent shall otherwise consent in writing, the Company shall conduct will, and will cause each of its subsidiaries to, carry on their business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay their debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its their present business organizationsorganization, keep available the services of its their present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of business, and any material event involving or adversely affecting the Company, any of its Business subsidiaries or their business. Except as expressly contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, without the prior written consent of Parent:
(a) enter into any commitment or transaction not in the ordinary course of business;
(i) transfer to any person or entity any rights to the Company Intellectual Property, (ii) enter into or amend any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity (other than (A) intellectual property rights acquired under "shrink-wrap" and similar widely available commercial binary code end-user licenses and (B) limited, end-user license agreements for transactions entered into in the ordinary course of business, consistent with past practices that are on terms and conditions substantially similar to the Company's standard, existing form agreement set forth in Schedule 4.1(b)), (iii) buy or license any Intellectual Property Rights, (iv) enter into any agreement with respect to the development of any Intellectual Property Rights or Technology, (v) modify its standard warranty terms for the Company Products or amend or modify any Company Product or service warranties in effect as of the date hereof in any manner that is adverse to the Company or any Subsidiary’s businessof its subsidiaries;
(c) enter into, renew or amend any agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any Company Products or Technology owned by the Company or any of its subsidiaries;
(d) amend or otherwise modify (or agree to do so), or violate the terms of, any of the agreements set forth or described in the Disclosure Schedule;
(e) commence any litigation or any binding dispute resolution process;
(f) except as provided in this Agreement, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any changeof the Company Capital Stock (which, occurrence for the purposes of this clause (f), shall include the capital stock or event share capital of any of the Company's subsidiaries), or split, combine or reclassify any of the Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the Company Capital Stock (or options, warrants or other rights exercisable therefor), other than pursuant to the Company's repurchase right under employee restricted stock purchase agreements;
(g) except for the issuance of (i) shares of Company Common Stock upon exercise of the presently outstanding Company Options, (ii) shares of Company Common Stock upon conversion of Company Series A Preferred Stock or Company Series B Preferred Stock or (iii) shares of Company Series A Preferred Stock upon exercise of the Company Series A Preferred Warrant, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of the Company Capital Stock (which, for the purposes of this clause (g), shall include the capital stock or share capital of any of the Company's subsidiaries) or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any Company Capital Stock or other convertible securities;
(h) except as otherwise contemplated by this Agreement, cause or permit any amendments to the Company's Certificate of Incorporation or Bylaws or any comparable governing documents of any of the Company's subsidiaries;
(i) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate with any other changesaggregate, occurrences and events, would reasonably be expected to be materially adverse to the business of the Company and its Subsidiaries taken together subsidiaries;
(j) sell, lease, license, loan or cause otherwise dispose of any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business properties or assets of the Company. Without limiting Company or any of its subsidiaries;
(k) authorize any additional or new capital expenditure or expenditures that individually is in excess of $10,000 or in the generality aggregate are in excess of $25,000;
(l) incur any indebtedness for borrowed money or effect guarantee any such indebtedness or issue or sell any debt securities of the provisions Company or guarantee any debt securities of Section 4.1, others;
(m) except as set forth on Schedule 4.2provided in this Agreement, during grant any severance or termination pay to any director, officer, employee or consultant;
(n) adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer or loan, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the period from salaries, wage rates or benefits of its employees, nor grant any equity-based compensation award (whether payable in cash, shares or otherwise);
(o) revalue any of its assets, including without limitation writing down the Agreement Date and continuing until value of inventory or writing off notes or accounts receivable;
(p) pay, discharge or satisfy, in an amount in excess of $10,000 in any one case or $20,000 in the earlier aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements;
(q) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the termination limitation period applicable to any claim or assessment in respect of this Agreement Taxes;
(r) enter into or renew any strategic alliance, joint development or joint marketing arrangement or agreement;
(s) fail to pay or otherwise satisfy its monetary obligations as they become due;
(t) waive or commit to waive any rights with a value in excess of $10,000, in any one case, or $20,000, in the aggregate;
(u) cancel or amend any insurance policy, other than replacements or renewals of existing insurance policies on substantially the same terms and with substantially the Effective Timesame coverage limits on such existing policies;
(v) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which the Company shall notdirectly or indirectly holds any interest on the date hereof; or
(w) take, and shall cause each Subsidiary not toor agree in writing or otherwise to take, do, cause or permit any of the following actions described in Sections 4.1(a) through (except v) above, or any other action that would prevent the Company from performing or cause the Company not to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the Agreement Date April 21, 2000 and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (unless Parent shall conduct give its prior consent in writing which consent shall not be unreasonably withheld) to carry on its business solely in the usual, regular and ordinary course consistent in substantially all respects with the same manner as heretofore conducted Company's 2000 operating plan provided to Parent prior to the date of this Agreement, to pay its Liabilities and Taxes consistent with the Company's past practices (except and in any event when due), to pay or perform other obligations when due consistent with the Company's past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent expressly provided otherwise in this Agreement or as consented consistent with such business, to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and institute all policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with it, to all with the end that express purpose and intent of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Company shall promptly notify Acquirer of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time. Except as expressly contemplated by this Agreement, the Company shall not, and without the prior written consent of Parent, which consent shall cause each Subsidiary not tobe unreasonably withheld, dotake, cause or permit agree in writing or otherwise to take, any of the following (except to the extent expressly provided otherwise actions described in Section 2.9 of this Agreement, or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder. Without limiting the generality of the foregoing, with respect to Section 2.9(j), any Options granted must have an exercise price of at least the fair market value of the Company Common Stock on the date the Option was granted (as consented to determined in writing good faith by Acquirer):the Company's board of directors following consultation with, and consistent with the advice provided by, each of the Company's and Parent's independent public accountants).
Appears in 1 contract
Samples: Merger Agreement (Broadcom Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the CompanyONElist and eGroups.
(a) ONElist Conduct. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
, ONElist agrees (aexcept to the extent that eGroups shall otherwise consent in writing or as expressly contemplated herein) the Company shall conduct to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Company Effective Time. ONElist shall promptly notify Acquirer eGroups of any change, material event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s business, and any material event involving or of any change, occurrence adversely affecting ONElist or event which, individually or in the aggregate with any other changes, occurrences its business. Except as expressly contemplated by this Agreement and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.24.1(a), during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company ONElist shall not, without the prior written consent of eGroups:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any ONElist Intellectual Property (other than pursuant to end-user licenses in the ordinary course of business);
(iii) Enter into or amend any agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of ONElist;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the ONElist Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of ONElist, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(vii) Except as may be required for the issuance of shares of ONElist Capital Stock upon exercise or conversion of presently outstanding ONElist Options and shall cause each Subsidiary not toexcept pursuant to agreements previously entered into and agreements that ONElist will enter into in the ordinary course of business and consistent with past practice in connection with the employment of non-officer employees, doissue, cause grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities;
(viii) Cause or permit any amendments to its Articles of Incorporation or Bylaws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of ONElist;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice, or create any security interest in such assets or properties;
(xi) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of ONElist or guarantee any debt securities of others;
(xii) Grant any severance or termination pay to any director, officer, employee or consultant, except payments (a) required by law or, (b) with respect to non-officer employees and consultants (i) made pursuant to written agreements outstanding on the date hereof (which such agreements are disclosed on Schedule 4.1(a)(xii)), or (ii) pursuant to ONElist policy in effect on the date hereof and that has been disclosed to eGroups;
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees other than in the ordinary course of business and consistent with past practice;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the following capital stock of ONElist which would be reasonably likely to interfere with eGroups' ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $25,000, in any one case, or $100,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the ONElist Financial Statements or incurred in the ordinary course of business since September 30, 1999;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $10,000, in any one case, or $25,000, in the extent expressly provided otherwise aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in this Agreement the ordinary course of business;
(xxii) Alter, or as consented enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which ONElist directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 4.1(a)(i) through (xxii) above, or any other action that would prevent ONElist from performing or cause ONElist not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct otherwise consent in writing) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s -41- business, and any material event involving or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to adversely affecting the Company and or its Subsidiaries taken together business. Except as expressly contemplated by this Agreement, or cause any of the conditions to closing set forth disclosed in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section Schedule 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, without the prior written consent of Parent:
(a) Enter into any commitment or transaction not in the ordinary course of business consistent with past practices or, in any event, which exceeds $25,000, individually;
(b) Transfer to any person or entity any rights to the Company's Intellectual Property other than limited, end-user license agreements entered into in the ordinary course of business consistent with past practices, and shall cause each Subsidiary on terms and conditions substantially similar to the Company's standard existing form agreements set forth in Schedule 2.13(r), which do not toexceed $25,000, doindividually;
(c) Enter into or amend any agreements pursuant to which any other party is granted manufacturing, cause marketing, distribution or similar rights of any type or scope with respect to any products of the Company;
(d) Except as otherwise required pursuant to Article V, amend or otherwise modify (or agree to do so), or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(e) Commence any litigation or any dispute resolution process;
(f) Except for cumulative dividends with respect to the Series A Preferred, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor), other than pursuant to the Company's repurchase right under employee restricted stock purchase agreements;
(g) Except for the issuance of shares of Company Capital Stock upon exercise of the presently outstanding Company Options, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities;
(h) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise -42- acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the following Company;
(except j) Sell, lease, license, loan or otherwise dispose of any of its properties or assets other than the Company's Intellectual Property; provided, however, that any such transaction as it relates to the extent expressly Company's Intellectual Property is performed in the ordinary course of business, consistent with past practices and does not exceed $25,000, individually;
(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the Company or guarantee any debt securities of others;
(l) Grant any severance or termination pay to any director, officer, employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof;
(m) Except as otherwise required pursuant to Article V and not including travel and business expenses incurred in the ordinary course of business in accordance with past practices (provided that such advances do not exceed an aggregate of $25,000), adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer or loan, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees;
(n) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable in excess of $5,000 in any one case or $10,000 in the aggregate;
(o) Pay, discharge or satisfy, in an amount in excess of $25,000 in any one case, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(p) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Take any action, including the acceleration of vesting of any restricted stock or any options or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to prevent the Merger from qualifying as a tax-free reorganization hereunder;
(r) Enter into any strategic alliance, joint development or joint marketing agreement;
(s) Fail to pay or otherwise satisfy its monetary obligations in this Agreement the ordinary course of business consistent with past practice, except such as are being contested in good faith;
(t) Waive or as consented commit to waive any rights with a value in excess of $25,000, in any one case, excluding current obligations all of which are described on Schedule 2.8;
(u) Cancel, materially amend or renew any insurance policy;
(v) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(w) Commit to, or agree (in writing by Acquirer):or otherwise) to take, any of the actions described in Sections 4.1(a) through (v) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Edwards J D & Co)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of by the Company, Parent and Merger Sub. During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time:
Closing, each of the Company, the Company’s Subsidiaries, Parent and Merger Sub shall, except to the extent that Parent (ain the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) shall conduct otherwise consent in writing (in either case, which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 4.1 of the Company Schedules or the Parent Schedules (“Schedule 4.1”) or as contemplated by this Agreement or the Convertible Note Documents or as required by applicable law (including as may be compelled by any Governmental Entity), use commercially reasonable efforts to carry on its business solely in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
laws and regulations (bexcept as expressly contemplated by Schedule 4.1) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice practices and policies to (i) preserve substantially intact its present business organizationsorganization, (ii) keep available the services of its present key officers and key employees and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others having with which it has significant business dealings with it, to dealings. Notwithstanding the end that its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Company shall promptly notify Acquirer of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the foregoing provisions of this Section 4.1, except as set forth on Schedule 4.2each Party shall be deemed not to have failed to satisfy its obligations under this Section 4.1 to the extent such failure resulted, directly or indirectly, from such Party’s failure to take any action prohibited by (a) through (v) below, where consent for such action hereunder was requested in writing and not given by the other Party. In addition, but subject to the foregoing exceptions, without the prior written consent of Parent (in the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) (in either case, which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, except as set forth in Schedule 4.1, each of the Company (on its behalf and on behalf of its Subsidiaries), Parent and Merger Sub shall not do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable law, written agreements outstanding, or Plans or policies existing, on the Agreement Date and as previously or concurrently disclosed or made available to the other Party, or in the case of the Company and its Subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;
(c) Transfer or license to any person or otherwise extend, amend or modify any material rights to any Intellectual Property or enter into grants to transfer or license to any person future patent rights, other than in the ordinary course of business consistent with past practices, provided, that, the foregoing shall not prohibit any such actions occurring solely as between the Company and one or more of its Subsidiaries or between two or more of the Subsidiaries of the Company;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Subsidiary of the Company to the Company or another such Subsidiary), or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests of the Company or Parent, except, in the case of the Company, pursuant to the terms of a Plan outstanding on the Agreement Date in accordance with the applicable terms as of the Agreement Date;
(f) Issue, deliver, sell, authorize, pledge, amend, exchange, settle or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities; provided, that, the foregoing shall not restrict the issuance of shares of Company Stock (or other class of equity security of the Company, as applicable) or Convertible Senior Notes pursuant to the terms of the Convertible Note Documents, in each case in accordance with the applicable terms of such documents as of the Agreement Date;
(g) Amend its Charter Documents in a manner that would reasonably be expected to prevent, hinder or delay the consummation of the transactions contemplated hereby, adversely affect the business, equity or assets of the Company, or otherwise in a manner that would be adverse to Parent or the stockholders of the Company;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the aggregate, to the business of Parent or the Company and its Subsidiaries, taken as a whole, as applicable, or, unless in the ordinary course of business, enter into any joint ventures, strategic partnerships or alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such party’s ability to compete or to offer or sell any products or services to other Persons, provided, that, the foregoing shall not prohibit the Company or any of its Subsidiaries from entering into capital leases or engaging in capital expenditures with respect to equipment in an amount not to exceed $3,000,000 (“Permitted Capital Leases”). For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged or consolidated entity be included in the Information Statement;
(i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except (A) licenses or sales in the ordinary course of business consistent with past practice, (B) the incurrence of Permitted Liens, (C) pursuant to existing Company Contracts delivered or made available to Parent and (D) the sale, lease or disposition of property or assets that are not material, individually or in the aggregate, to the business of such party (measured with all of its Subsidiaries, taken as a whole), provided, that, the foregoing shall not prohibit any such licenses or transfers occurring solely as between the Company and one or more of its Subsidiaries or between two or more of the Subsidiaries of the Company;
(j) Except incurrences of indebtedness under the Company’s existing credit facilities (and, in the case of the Company and its Subsidiaries, extensions of credit in the ordinary course with employees and among the Company and its Subsidiaries), issuances of Convertible Senior Notes pursuant to the Convertible Note Documents, incurrence of Permitted Capital Leases or as set forth on Schedule 4.1(j), incur any indebtedness for borrowed money (other than indebtedness incurred solely as between the Company and one or more of its Subsidiaries or between two or more of the Subsidiaries of the Company) or guarantee any such indebtedness of another Person or Persons (other than Affiliates), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent or the Company and its Subsidiaries, as applicable, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) Except as otherwise required by applicable law or pursuant to an existing Plan, policy or Company Contract of the Company or its Subsidiaries or as otherwise permitted under this Agreement, (i) adopt or materially amend any Plan (including any Plan that provides for severance), or enter into any employment contract or collective bargaining agreement, other than in each case in the ordinary course of business consistent with past practice, (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practices, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices;
(l) (i) Pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the Agreement Date) other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations in the ordinary course of business consistent with past practices or in accordance with their terms, or recognized or disclosed in the Company Financial Statements or in the most recent Parent SEC Reports, as applicable, or incurred since the date of such financial statements, or, in the case of the Company, would require any payment by the Company or a Company Subsidiary in an amount less than $100,000 individually or $500,000 in the aggregate, (ii) waive the benefits of, agree to modify in any material manner, terminate, release any person from or knowingly fail to enforce any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party or of which the Company any of its Subsidiaries is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practices) or to which Parent is a party or of which Parent is a beneficiary, as applicable;
(m) Except in each case in the ordinary course of business consistent with past practices, modify in a manner materially adverse to the Company, Parent or Merger Sub, as applicable, or terminate (other than in accordance with its terms) any Material Company Contract or Parent Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Except as required by law or U.S. GAAP, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices;
(o) Except in the ordinary course of business consistent with past practices or incurrence of Permitted Capital Leases, incur or enter into any agreement, contract or commitment requiring such party to pay, in the case of the Company in excess of $500,000 in any 12 month period and, in the case of Parent, in excess of $50,000 in any 12 month period;
(p) Settle any material litigation where the consideration given by the Party is other than monetary, or to which an officer, director or employee of such Person is a party in his or her capacity as such;
(q) Make or rescind any Tax elections that, individually or in the aggregate, would be reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of such party, settle or compromise any material income tax liability outside the ordinary course of business or, except as required by applicable law, change any material method of accounting for Tax purposes or prepare or file any Return in a manner materially inconsistent with past practice;
(r) [Intentionally Omitted];
(s) Permit, in the case of the Company, the Company, any Subsidiary of Company or the administrator of any Plan of the Company or its Subsidiaries or, in the case of Parent or Merger Sub, Parent, Merger Sub or any of their respective Subsidiaries or the administrator of any Plan of Parent, Merger Sub or any of their respective Subsidiaries, to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plan, except as contemplated by this Agreement;
(t) Enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, stockholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice or (ii) such material transactions, distributions or advancements by a Subsidiary of the Company to the Company or vice versa or by a Subsidiary of the Company to another Subsidiary of the Company;
(u) With respect to Parent, hire any Person to be employed by Parent; or
(v) Agree in writing or otherwise agree or commit to take any of the actions described in Section 4.1(a) through 4.1(u) above; provided that, during any period of full or partial suspension of operations related to the coronavirus (COVID-19) pandemic, the Company and its Subsidiaries, may, in connection with the coronavirus (COVID-19) pandemic, take the actions described in clauses (b), (c), (i), (j), (l), (m) and (o) of Section 4.1 solely to the extent the Company reasonably determines in good faith that such actions as are reasonably necessary (1) to protect the health and safety of their respective employees and other individuals with whom they have business dealings, (2) respond to third-party supply or service disruptions caused by the coronavirus (COVID-19) pandemic, or (3) otherwise mitigate what would otherwise result in material adverse financial or operational impact to the Company as determined in the reasonable judgment of the Company’s management. Nothing contained in this Agreement will give Parent, directly or indirectly, the right to control the Company or any of the Company Subsidiaries or direct the business or operations of the Company or any of the Company Subsidiaries prior to the Effective Time. Nothing contained in this Agreement will give the Company, directly or indirectly, the right to control Parent or any of the Parent Subsidiaries or direct the business or operations of Parent or any of the Parent Subsidiaries prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall notwill exercise, consistent with the terms and shall cause each Subsidiary not toconditions of this Agreement, docomplete control and supervision over its operations and the operations of its Subsidiaries (if any). Nothing in this Agreement, cause or permit including any of the following (except actions, rights or restrictions set forth herein, will be interpreted in such a way as to place the extent expressly provided otherwise Company or Parent in this Agreement violation of any rule, regulation or as consented to in writing by Acquirer):policy of any Governmental Entity or applicable Legal Requirements.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newtown Lane Marketing Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the CompanyCompany and its Subsidiaries. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) Time and except to the extent that Parent shall otherwise consent in writing, the Company shall conduct will, and will cause each of its subsidiaries to, carry on their business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay their debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its their present business organizationsorganization, keep available the services of its their present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of business, and any material event involving or adversely affecting the Company, any of its Business subsidiaries or their business. Except as expressly contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed:
(a) enter into any commitment or transaction not in the ordinary course of business;
(i) transfer to any person or entity any rights to the Company Intellectual Property, (ii) enter into or amend any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity (other than intellectual property rights acquired under "shrink-wrap" and similar widely available commercial binary code end-user licenses), (iii) buy or license any Intellectual Property Rights, (iv) enter into any agreement with respect to the development of any Intellectual Property Rights or Technology, (v) modify its standard warranty terms for the Company Products or amend or modify any Company Product or service warranties in effect as of the date hereof in any manner that is adverse to the Company or any Subsidiary’s businessof its subsidiaries;
(c) enter into or materially amend any agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any Company Products or Technology owned by the Company;
(d) materially amend or otherwise modify (or agree to do so), or violate the terms of, any of the agreements set forth or described in the Disclosure Schedule;
(e) commence any litigation or any dispute resolution process;
(f) except as provided in this Agreement, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any changeof the Company Capital Stock, occurrence or event whichsplit, combine or reclassify any of the Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the Company Capital Stock (or options, warrants or other rights exercisable therefor), other than pursuant to the Company's repurchase right under employee restricted stock purchase agreements;
(g) except for the issuance of shares of Company Common Stock upon exercise of the presently outstanding Company Options or Company Warrants, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of the Company Capital Stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any Company Capital Stock or other convertible securities;
(h) cause or permit any amendments to the Company's Certificate of Incorporation or Bylaws or any comparable governing documents of any of the Company's subsidiaries;
(i) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate with any other changesaggregate, occurrences and events, would reasonably be expected to be materially adverse to the business of the Company and its Subsidiaries taken together subsidiaries;
(j) sell, lease, license, loan or cause otherwise dispose of any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business properties or assets of the Company. Without limiting Company or any of its subsidiaries except in the generality ordinary course of business and consistent with past practice;
(k) authorize any additional or effect new capital expenditure or expenditures that individually is in excess of $10,000 or in the aggregate are in excess of $25,000;
(l) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the provisions Company or guarantee any debt securities of Section 4.1others;
(m) except as provided in this Agreement, grant any severance or termination pay (whether in cash, stock, or other equity instruments) to any director, officer, employee or consultant;
(n) adopt or, except as set forth on Schedule 4.2may be required by law or by Section 5.16 hereof, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Timeamend or terminate any employee benefit plan, the program, policy or arrangement (including without limitation any amendment which accelerates vesting under any such employee benefit plan, program, policy or arrangement or any existing Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (Employee Plan) except to the extent expressly provided such amendments do not result in a material increase in cost, or enter into any employment contract, extend any employment offer or loan, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries, wage rates or benefits of its employees, nor grant any equity-based compensation award (whether payable in cash, shares or otherwise);
(o) revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable;
(p) pay, discharge or satisfy, in an amount in excess of $10,000 in any one case or $20,000 in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction that is either necessary in order for the Company to implement Section 5.16 hereof or in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements;
(q) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(r) enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(s) fail to pay or otherwise satisfy its monetary obligations as they become due;
(t) waive or commit to waive any rights with a value in this Agreement excess of $10,000, in any one case, or as consented $20,000, in the aggregate;
(u) cancel or amend any insurance policy;
(v) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(w) take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 4.1(a) through (v) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 6.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (except as contemplated by this Agreement or to the extent that Parent shall conduct otherwise consent in writing) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its all commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and officers, key employees and independent contractors, and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) Effective Time. Following the date of this Agreement, the Company shall promptly notify Acquirer Parent of any change, occurrence or materially negative event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse related to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business business of the Company. Without limiting the generality or effect of the provisions of Section 4.1foregoing, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of expressly contemplated by this Agreement and the Effective TimeAgreement, the Company shall not, without the prior written consent of Parent:
(a) Enter into any material commitment or transaction not in the ordinary course of business consistent with past practice;
(b) Transfer to any Person or entity any material Proprietary Rights, other than pursuant to licenses in the ordinary course of business;
(c) Enter into any material agreements (or material amendments thereto) pursuant to which any unrelated third party is granted marketing, distribution or similar rights of any type or scope with respect to any products of the Company other than in the ordinary course of business consistent with past practice;
(d) Amend or otherwise modify, except in the ordinary course of business, or violate the material terms of, any of the agreements set forth or described in the Disclosure Schedule;
(e) Commence any material litigation;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital 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 or other equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor), except pursuant to purchase rights under agreements with employees and consultants;
(g) Except for the issuance of Company Shares upon exercise of presently outstanding Company Options (as to which the Company shall cause each Subsidiary not todeduct and withhold such amounts as it is required to deduct and withhold under any provision of federal, dostate, cause local or foreign tax law) or upon conversion of outstanding Company Preferred Stock, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Voting Debt or any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities;
(h) Cause or permit any amendments to its Restated Certificate or Bylaws (or other charter documents);
(i) Acquire or agree to acquire any assets in excess of $25,000 in the case of a single transaction, or acquire by merging or consolidating with or by purchasing or by any other manner, any equity securities;
(j) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business consistent with past practice;
(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any of its debt securities or guarantee any debt securities of others;
(l) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee other than pursuant to the existing agreements of the following Company;
(except m) Adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offers to the extent expressly provided otherwise any Person whose aggregate annual base salary would exceed $50,000, pay or agree to pay any special bonus or special remuneration to any director or employee other than in this Agreement or as consented to in writing by Acquirer):connection with normal annual bonus and salary adjustments for all
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of ---------------------------------- this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time:
(a) , the Company (which for the purposes of this Section 4.1 shall conduct include the Company and each of its subsidiaries) agrees, except as expressly contemplated or permitted by this Agreement or to the extent that Parent shall otherwise consent in writing, to carry on its business solely in the usual, regular and ordinary course course, in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance in all material respects with all applicable Legal Requirements;
(b) the Company shall (A) laws and regulations, to pay and perform all of its debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other material obligations (including Taxes) when due, (B) and to use commercially all reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with itthe Company, to the end that its the Company's goodwill and ongoing businesses shall not be unimpaired impaired in any material respect at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event not in the ordinary course of business of the Company, and will not enter into or amend any agreement or take any action which reasonably would be expected to have a Material Adverse Effect on the Company. Except as expressly contemplated by this Agreement or in compliance with Section 5.4(a), the Company shall not prior to the Effective Time or earlier termination of this Agreement pursuant to its Business terms, without the prior written consent of Parent, which shall not be unreasonably withheld:
(a) Waive any stock repurchase rights, accelerate, amend, or change the period of exercisability of options or repurchase of restricted stock, or reprice options granted under the employee stock plans of the Company or authorize cash payments in exchange for any options granted under any of such plans, or by inaction suffer any of the foregoing to occur when unilateral action by the Company (other than action involving termination of such options) could have prevented it, all unless otherwise expressly required pursuant to the terms of the Company Stock Option Plan, or take any such action (or by inaction suffer such to occur when unilateral action by the Company could have prevented it) with regard to any warrant or other right to acquire capital stock of the Company;
(b) Enter into partnership arrangements, joint development agreements, or strategic alliances;
(c) Grant any severance or termination pay (i) to any executive officer or (ii) to any other employee except payments made in connection with the termination of employees who are not executive officers in amounts consistent with the Company's policies and past practices or pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to Parent;
(d) Transfer or license to any person or entity or otherwise extend, amend, or modify any rights to the Company's Intellectual Property Rights or enter into grants of future patent rights, other than non-exclusive licenses in connection with the sale of goods or services entered into in the ordinary course of business consistent with past practices;
(e) Commence any litigation other than (i) for the routine collection of bills, (ii) for software piracy, or (iii) in such cases where the Company in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of the Company's business, provided that the Company consults with Parent prior to the filing of such a suit;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, securities or property) in respect of any of its capital stock, or split, combine, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock of the Company;
(g) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of its capital stock or its subsidiaries' capital stock except from former employees, directors, and consultants in accordance with agreements existing as of the date hereof requiring the repurchase of shares in connection with any termination of service to the Company;
(h) Issue, deliver, sell, or pledge or authorize or propose the issuance, delivery, sale, or pledge of any shares of its capital stock of any class or securities convertible or exchangeable into or exercisable for, or subscriptions, rights, warrants, or options to acquire, or enter into other agreements or commitments of any character obligating it to issue, any such shares or other securities, other than the issuance of (i) shares of Company Common Stock pursuant to the exercise of Company stock options outstanding as of the date of this Agreement, (ii) options to purchase shares of Company Common Stock granted to new employees in the ordinary course of business consistent with past practice, (iii) shares of Company Common Stock issuable upon the exercise of the options referred to in clause (ii); and (iv) to Board and audit committee members for attending meetings in amounts consistent with past practice and in the aggregate not to exceed 6,000 shares;
(i) Cause, permit, or propose any amendments to the Company's Certificate of Incorporation or By-laws or other charter documents or similar governing instruments of any of its subsidiaries;
(j) Acquire or agree to acquire, by merging or consolidating with, by purchasing any equity interest in or a material portion of the assets of or by any other manner, any business or any Subsidiary’s businesscorporation, partnership, association, or of other business organization or division thereof, or otherwise acquire or agree to acquire any change, occurrence or event whichassets which are material, individually or in the aggregate with any other changesaggregate, occurrences and events, would reasonably be expected to be materially adverse to the business of the Company, or enter into any joint ventures, strategic partnerships, or alliances or purchase any distributors;
(k) Sell, lease, license, encumber, or otherwise dispose of any of the Company's properties or assets which are material, individually or in the aggregate, to the business of the Company;
(l) Incur any indebtedness for borrowed money (other than ordinary course trade payables or pursuant to existing credit facilities in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or warrants, calls, or other rights to acquire debt securities of the Company or guarantee any debt securities of others or enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of the foregoing;
(m) Adopt or amend any employee benefit or stock purchase or option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practices with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its Subsidiaries taken together directors, officers, employees, or consultants other than in the ordinary course of business consistent with past practice, or change in any material respect any management policies or procedures;
(n) Revalue any of the Company's assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or, except as required by GAAP, make any change in accounting methods, principles, or practices;
(o) Pay, discharge, or satisfy in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate) any claim, liability, or obligation (absolute, accrued, asserted, or unasserted, contingent or otherwise), other than a payment, discharge, or satisfaction in the ordinary course of business;
(p) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any material Return other than the Return for the fiscal year ending May 31, 2003 (which the Company may file) or any amendment to a material Return, enter into any closing agreement, settle any claim or assessment in respect of Taxes (except settlements effected solely through payment of immaterial sums of money), or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Make any capital expenditures in excess of $100,000 in the aggregate;
(r) Modify, amend, or terminate any material contract or agreement to which the Company or any of its subsidiaries is a party or enter into any contract or agreement which provides for the Company to incur or pay any amounts in excess of $25,000 over the life of such contract or agreement except in the ordinary course of business;
(s) Settle any material litigation or waive, release, or assign any material rights or claims thereunder;
(t) Take any action that would be reasonably likely to interfere with the treatment of the Merger as a "reorganization" within the meaning of Section 368 of the Code;
(u) Enter into, modify, amend, or cancel any development services, licensing, distribution, sales, sales representation, or other similar agreement or obligation with respect to any material Company Intellectual Property Rights other than such agreements entered into in the ordinary course of business consistent with past practices;
(v) Engage in any action with the intent directly or indirectly to impact adversely any of the transactions contemplated by this Agreement, including with respect to any "poison pill" or similar plan, agreement, or arrangement or any Takeover Statute;
(w) Take any action that would (i) entitle any Person to any payment under any security, option, warrant, call, right, commitment, or other agreement of the Company or (ii) result in an adjustment to the exercise price or number of shares issuable upon exercise of any security, option, warrant, call, right, commitment, or agreement of the Company; or by inaction suffer any of the foregoing to occur when unilateral action by the Company (other than action involving termination of any options) could have prevented it; or
(x) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.l(a) through (w) above or any action which would cause or would be reasonably likely to cause any of the conditions to closing the Merger set forth in ARTICLE 6 Sections 6.1 or 6.3 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):
Appears in 1 contract
Samples: Merger Agreement (Phazar Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. ---------------------------------- During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time:
(a) , the Company (which for the purposes of this Section 4.1 shall conduct include the Company and each of its subsidiaries) agrees, except as expressly contemplated or permitted by this Agreement or to the extent that Parent shall otherwise consent in writing, to carry on its business solely in the usual, regular and ordinary course course, in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance in all material respects with all applicable Legal Requirements;
(b) the Company shall (A) laws and regulations, to pay and perform all of its debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other material obligations (including Taxes) when due, (B) and to use commercially all reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with itthe Company, to the end that its the Company's goodwill and ongoing businesses shall not be unimpaired impaired in any material respect at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event not in the ordinary course of business of the Company, and will not enter into or amend any agreement or take any action which reasonably would be expected to have a Material Adverse Effect on the Company. Except as expressly contemplated by this Agreement or in compliance with Section 5.4(a), the Company shall not prior to the Effective Time or earlier termination of this Agreement pursuant to its Business terms, without the prior written consent of Parent, which shall not be unreasonably withheld:
(a) Waive any stock repurchase rights, accelerate, amend, or change the period of exercisability of options or repurchase of restricted stock, or reprice options granted under the employee stock plans of the Company or authorize cash payments in exchange for any options granted under any of such plans, or by inaction suffer any of the foregoing to occur when unilateral action by the Company (other than action involving termination of such options) could have prevented it, all unless otherwise expressly required pursuant to the terms of the Company Stock Option Plan, or take any such action (or by inaction suffer such to occur when unilateral action by the Company could have prevented it) with regard to any warrant or other right to acquire capital stock of the Company;
(b) Enter into partnership arrangements, joint development agreements, or strategic alliances;
(c) Grant any severance or termination pay (i) to any executive officer or (ii) to any other employee except payments made in connection with the termination of employees who are not executive officers in amounts consistent with the Company's policies and past practices or pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to Parent;
(d) Transfer or license to any person or entity or otherwise extend, amend, or modify any rights to the Company's Intellectual Property Rights or enter into grants of future patent rights, other than non-exclusive licenses in connection with the sale of goods or services entered into in the ordinary course of business consistent with past practices;
(e) Commence any litigation other than (i) for the routine collection of bills, (ii) for software piracy, or (iii) in such cases where the Company in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of the Company's business, provided that the Company consults with Parent prior to the filing of such a suit;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, securities or property) in respect of any of its capital stock, or split, combine, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock of the Company;
(g) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of its capital stock or its subsidiaries' capital stock except from former employees, directors, and consultants in accordance with agreements existing as of the date hereof requiring the repurchase of shares in connection with any termination of service to the Company;
(h) Issue, deliver, sell, or pledge or authorize or propose the issuance, delivery, sale, or pledge of any shares of its capital stock of any class or securities convertible or exchangeable into or exercisable for, or subscriptions, rights, warrants, or options to acquire, or enter into other agreements or commitments of any character obligating it to issue, any such shares or other securities, other than the issuance of (i) shares of Company Common Stock pursuant to the exercise of Company stock options outstanding as of the date of this Agreement, (ii) options to purchase shares of Company Common Stock granted to new employees in the ordinary course of business consistent with past practice, (iii) shares of Company Common Stock issuable upon the exercise of the options referred to in clause (ii); and (iv) to Board and audit committee members for attending meetings in amounts consistent with past practice and in the aggregate not to exceed 6,000 shares;
(i) Cause, permit, or propose any amendments to the Company's Certificate of Incorporation or By-laws or other charter documents or similar governing instruments of any of its subsidiaries;
(j) Acquire or agree to acquire, by merging or consolidating with, by purchasing any equity interest in or a material portion of the assets of or by any other manner, any business or any Subsidiary’s businesscorporation, partnership, association, or of other business organization or division thereof, or otherwise acquire or agree to acquire any change, occurrence or event whichassets which are material, individually or in the aggregate with any other changesaggregate, occurrences and events, would reasonably be expected to be materially adverse to the business of the Company, or enter into any joint ventures, strategic partnerships, or alliances or purchase any distributors;
(k) Sell, lease, license, encumber, or otherwise dispose of any of the Company's properties or assets which are material, individually or in the aggregate, to the business of the Company;
(l) Incur any indebtedness for borrowed money (other than ordinary course trade payables or pursuant to existing credit facilities in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or warrants, calls, or other rights to acquire debt securities of the Company or guarantee any debt securities of others or enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of the foregoing;
(m) Adopt or amend any employee benefit or stock purchase or option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practices with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its Subsidiaries taken together directors, officers, employees, or consultants other than in the ordinary course of business consistent with past practice, or change in any material respect any management policies or procedures;
(n) Revalue any of the Company's assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or, except as required by GAAP, make any change in accounting methods, principles, or practices;
(o) Pay, discharge, or satisfy in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate) any claim, liability, or obligation (absolute, accrued, asserted, or unasserted, contingent or otherwise), other than a payment, discharge, or satisfaction in the ordinary course of business;
(p) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any material Return other than the Return for the fiscal year ending May 31, 2003 (which the Company may file) or any amendment to a material Return, enter into any closing agreement, settle any claim or assessment in respect of Taxes (except settlements effected solely through payment of immaterial sums of money), or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Make any capital expenditures in excess of $100,000 in the aggregate;
(r) Modify, amend, or terminate any material contract or agreement to which the Company or any of its subsidiaries is a party or enter into any contract or agreement which provides for the Company to incur or pay any amounts in excess of $25,000 over the life of such contract or agreement except in the ordinary course of business;
(s) Settle any material litigation or waive, release, or assign any material rights or claims thereunder;
(t) Take any action that would be reasonably likely to interfere with the treatment of the Merger as a "reorganization" within the meaning of Section 368 of the Code;
(u) Enter into, modify, amend, or cancel any development services, licensing, distribution, sales, sales representation, or other similar agreement or obligation with respect to any material Company Intellectual Property Rights other than such agreements entered into in the ordinary course of business consistent with past practices;
(v) Engage in any action with the intent directly or indirectly to impact adversely any of the transactions contemplated by this Agreement, including with respect to any "poison pill" or similar plan, agreement, or arrangement or any Takeover Statute;
(w) Take any action that would (i) entitle any Person to any payment under any security, option, warrant, call, right, commitment, or other agreement of the Company or (ii) result in an adjustment to the exercise price or number of shares issuable upon exercise of any security, option, warrant, call, right, commitment, or agreement of the Company; or by inaction suffer any of the foregoing to occur when unilateral action by the Company (other than action involving termination of any options) could have prevented it; or
(x) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.l(a) through (w) above or any action which would cause or would be reasonably likely to cause any of the conditions to closing the Merger set forth in ARTICLE 6 Sections 6.1 or 6.3 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):
Appears in 1 contract
Samples: Merger Agreement (Ydi Wireless Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
(a) , the Company agrees, except to the extent that Parent shall conduct its otherwise consent in writing, to carry on the Company's business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance consistent with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of such business, use its debts and other obligations (including Taxes) when due, (B) use commercially reasonable best efforts consistent with past practice and policies to collect accounts receivable when due preserve intact the Company's present business organizations, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not extend credit in the ordinary course of business of the Company and any material event involving the Company. Except as expressly contemplated by this Agreement or as set forth in Company Schedule 4.1, the Company shall not, without the prior written consent of Parent:
(a) make any expenditures other than in the ordinary course of business consistent with past practices or enter into any commitment or transaction exceeding $25,000 individually or $50,000 in the aggregate or any commitment or transaction of the type described in Section 2.8 hereof other than payroll transactions in the ordinary course of business consistent with past practices;
(b) make any purchases of inventory, or enter into any Contract to purchase, any inventory in excess of $50,000 in the aggregate, except any inventory purchased in accordance with an inventory purchase plan previously approved by Parent;
(i) sell, license or transfer to any person or entity any rights to any Company Intellectual Property or enter into any agreement with respect to any Company Intellectual Property with any person or entity or with respect to any Intellectual Property of any person or entity, (ii) buy or license any Intellectual Property or enter into any agreement with respect to the Intellectual Property of any person or entity, (iii) enter into any agreement with respect to the development of any Intellectual Property with a third party, or (iv) change pricing or royalties charged by the Company to its customers or licensees, or the pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(d) enter into or amend any Contract outside of the ordinary course of business consistent with past practicespractices pursuant to which any other party is granted marketing, (C) sell Company distribution, development or similar rights of any type or scope with respect to any products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available or technology of the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the ClosingCompany;
(ce) the Company shall promptly notify Acquirer of any changeamend or otherwise modify (or agree to do so), occurrence or event not except in the ordinary course of its Business or any Subsidiary’s business, or violate the terms of, any of the Contracts set forth or described in the Company Schedules;
(f) commence or settle any litigation;
(g) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any changeother securities in respect of, occurrence in lieu of or event whichin substitution for, shares of Company Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of Company Capital Stock (or options, warrants or other rights exercisable therefor) except in accordance with the agreements evidencing Company Options;
(h) issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of Company Capital Stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, except for issuances of Company Common Stock upon the exercise of Company Options;
(i) cause or permit any amendments to its articles of incorporation, bylaws or other organizational documents of the Company;
(j) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate with any other changesaggregate, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together Company's business;
(k) sell, lease (or cause sub-lease), license or otherwise dispose of any of its properties or assets exceeding $25,000 individually or $50,000 in the conditions to closing set forth in ARTICLE 6 not to aggregate, except for licenses for Company Intellectual Property, which shall be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of governed by the provisions of Section 4.14.1(c) hereof;
(l) incur any indebtedness (other than trade payables in the ordinary course of business consistent with past practices) or guarantee any indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) grant any loans to others outside of the ordinary course of business consistent with past practices or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) except as contemplated by Section 4.3 hereof, grant any severance or termination pay (i) to any director or officer, or (ii) to any other employee;
(o) except as contemplated by Section 4.3 hereof and as set forth on Company Schedule 4.24.1(g), during adopt or amend any Company Employee Plan, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the period from salaries or wage rates of its employees;
(p) revalue any of its assets, including without limitation writing down the Agreement Date value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) pay, discharge or satisfy, in an amount in excess of $25,000 in any one case, or $50,000 in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) other than trade payables and continuing until obligations incurred in the earlier ordinary course of business consistent with past practices;
(r) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) enter into any strategic alliance or joint marketing arrangement or agreement;
(t) encourage any employee to terminate his employment with the Company, except for termination for cause or in the ordinary course of this Agreement and the Effective Time, business consistent with past practices;
(u) enter into any contract not described in Sections 4.1(a) through 4.1(t) hereof which is not terminable by the Company shall notwithout penalty or payment within thirty (30) days of notice; or
(v) take, and shall cause each Subsidiary not toor agree in writing or otherwise to take, do, cause or permit any of the following (except to the extent expressly provided otherwise actions described in Sections 4.1(a) through 4.1(u) hereof, or any other action that would make any of its representations or warranties contained in this Agreement untrue or as consented to in writing by Acquirer):incorrect, prevent the Company or any of the Shareholders, from performing its covenants hereunder.
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct otherwise consent in writing, which consent shall not be unreasonably withheld, delayed or conditioned) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes before delinquent, to pay or perform other obligations before delinquent, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customerscustomers as requested by Parent, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) Effective Time except to the extent any such business relationships are adversely affected by the announcement of the Merger. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s business, and any material event involving or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to adversely affecting the Company and or its Subsidiaries taken together business. Except as expressly contemplated by this Agreement, or cause any of the conditions to closing set forth disclosed in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section Schedule 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, and without the prior written consent of Parent, which consent shall cause each Subsidiary not tobe unreasonably withheld, dodelayed or conditioned:
(a) Enter into any commitment or transaction not in the ordinary course of business.
(b) Transfer to any person or entity any rights to the Company Intellectual Property Rights (other than pursuant to End-User Licenses in the ordinary course of business);
(c) Enter into or amend any agreements pursuant to which any other party is granted manufacturing, cause marketing, distribution or similar rights of any type or scope with respect to any products of the Company;
(d) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(e) Commence any litigation;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor), other than pursuant to the Company's repurchase right under employee restricted stock purchase agreements;
(g) Except for the issuance of shares of Company Common Stock upon exercise of the presently outstanding Company Options, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities;
(h) Cause or permit any amendments to its Articles of Incorporation or Bylaws;
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are individually in excess of $10,000 or in the aggregate, $20,000;
(j) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(k) Incur any indebtedness for borrowed money other than an increase in the debt under the existing line of credit to cover payroll costs or guarantee any such indebtedness or issue or sell any debt securities of the following Company or guarantee any debt securities of others;
(l) Grant any severance or termination pay to any director, officer, employee or consultant, except payments made pursuant to standard written agreements outstanding on the extent expressly provided otherwise date hereof (which are disclosed on Schedule 4.1(l));
(m) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees except as required by law;
(n) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in this Agreement the ordinary course of business and consistent with past practice;
(o) Pay, discharge or as consented satisfy, in an amount in excess of $10,000 in any one case or $20,000 in the aggregate, any claim, liability, obligation, judgement or levy (absolute, accrued, asserted or unassented, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements;
(p) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Take any action, including the acceleration of vesting of any restricted stock or any options or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to jeopardize the tax-free reorganization hereunder;
(r) Enter into any strategic alliance, joint development or joint marketing agreement;
(s) Waive or commit to waive any rights with a value in excess of $10,000, in any one case, or $20,000, in the aggregate;
(t) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(u) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(v) Take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 4.1(a) through (u) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Carrier Access Corp)
Conduct Prior to the Effective Time. 4.1 5.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct otherwise consent in writing) to, and shall cause each of the Subsidiaries to, carry on its business solely in the usual, regular and ordinary course of business in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, occurrence materially negative event involving or event not in adversely affecting the ordinary course of Company or its Business business or any Subsidiary’s Subsidiary or its business, or . By way of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences amplification and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1limitation, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of expressly contemplated by this Agreement and the Effective TimeAgreement, the Company shall not, and shall cause each not permit any Subsidiary not to, dowithout the prior written consent of Parent:
(a) Waive any stock repurchase rights, cause accelerate, amend, or change the period of exercisability of any outstanding Company Options, Company Capital Stock or Subsidiary Securities subject to vesting, or reprice Company Options or Subsidiary Securities or authorize cash payments in exchange for any such outstanding options;
(b) Make any payments or enter into any commitment or transaction outside of the ordinary course of business in excess of $15,000;
(c) Modify, amend or terminate any material contract or agreement to which the Company or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder;
(d) Transfer to any person or entity any rights to the Company Intellectual Property (other than pursuant to end-user licenses granted to customers of the Company or any Subsidiary in the ordinary course of business);
(e) Enter into (except in the ordinary course of business and consistent with past practices) or amend any agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of the Company or any Subsidiary;
(f) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts;
(g) Commence any litigation except to enforce its rights hereunder or under any agreements related hereto;
(h) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any Company Capital Stock;
(i) Purchase, redeem or otherwise acquire, directly or indirectly, any Company Capital Stock or Company Options, except repurchases of unvested shares of Company Capital Stock at cost in connection with the termination of the employment relationship with any employee or consultant pursuant to stock option or purchase agreements in effect on the date hereof;
(j) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Company Capital Stock, Purchase Rights or Subsidiary Securities (except for the issuance of any Company Common Stock upon exercise or conversion of presently outstanding Company Options or Preferred Stock);
(k) Cause or permit any amendments to its Certificate of Incorporation or By-Laws or any equivalent documents of any Subsidiary;
(l) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire outside of the following ordinary course of business any assets in any amount, or in the ordinary course of business in an amount in excess of $10,000 in the case of a single transaction or in excess of $25,000 in the aggregate;
(m) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business; -39- 45
(n) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the Company or any Subsidiary or guarantee any debt securities of others;
(o) Grant any severance or termination pay (i) to any director or officer or (ii) to any other Employee except payments made pursuant to written agreements outstanding on the date hereof and as disclosed in the Company Schedules, or adopt any new severance plan;
(p) Adopt or amend any Company Employee Plan, or enter into any Employee Agreement, extend employment offers, pay or agree to pay any special bonus or special remuneration to any director or Employee, or increase the salaries or wage rates of its Employees;
(q) Effect or agree to effect, including by way of hiring or involuntary termination, any change in the Company's or any Subsidiary's directors, officers or key Employees;
(r) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(s) Pay, discharge or satisfy, in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Balance Sheet (or the notes thereto) or that arose in the ordinary course of business subsequent to the extent expressly provided otherwise in Balance Sheet Date or expenses consistent with the provisions of this Agreement incurred in connection with the transaction contemplated hereby;
(t) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(u) Enter into any strategic alliance, joint development or joint marketing agreement;
(v) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement;
(w) Take or agree to take any action which would preclude the ability of Parent to account for the business combination to be effected by the Merger as consented to a "pooling of interests;" or
(x) Take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 5.1(a) through (w) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants and obligations hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Concord Communications Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (unless the Company is required to take such action pursuant to this Agreement or Broadcom shall conduct give its prior consent in writing which consent shall not be unreasonably withheld) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies in any event consistent with the Company's Operating Plan provided prior to collect accounts receivable the date of this Agreement to Broadcom, to pay its Liabilities and Taxes consistent with the Company's past practices and to pay or perform other obligations when due (other than Liabilities, Taxes and not extend credit outside of other obligations, if any, contested in good faith), and, to the ordinary course of business extent consistent with past practicessuch business, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and institute all policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with it, to all with the end that express purpose and intent of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) Effective Time. Except as expressly contemplated by this Agreement, the Company shall promptly notify Acquirer not, without the prior written consent of Broadcom, knowingly, and, after review of this Agreement, take or agree in writing or otherwise to take, any change, occurrence or event not action that would result in the ordinary course occurrence of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions changes described in Section 2.9 of this Agreement or knowingly, after review of this Agreement, take, or agree in writing otherwise to closing set forth take, any other action that would make any of its representations or warranties contained in ARTICLE 6 this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition in Section 6.1 or Section 6.3 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2foregoing, during the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time, except as set forth in the Company Disclosure Schedule or as required or expressly permitted by this Agreement, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to following, without the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):prior written consent of Broadcom:
Appears in 1 contract
Samples: Merger Agreement (Broadcom Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct its otherwise consent in writing), to carry on the Company's business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practicessuch business, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially their reasonable best efforts consistent with past practice and policies to preserve intact its the Company's present business organizations, keep available the services of its the Company's present officers and key employees and preserve its the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that its goal of preserving unimpaired the Company's goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s business, or business of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of material event involving the conditions to closing Company. Except as expressly contemplated by this Agreement as set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business Section 4.1 of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective TimeDisclosure Schedule, the Company shall not, without the prior written consent of Parent (which consent may be pursuant to electronic mail, and shall cause each Subsidiary need not tobe signed):
(a) make any expenditures or enter into any commitment or transaction exceeding $250,000 individually or that is not in the ordinary course of business and consistent with past practice, door any commitment or transaction of the type described in Section 2.9 hereof;
(i) other than commercial licenses of the Company's software in the ordinary course of business consistent with past practice, sell any Company Intellectual Property or enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, (ii) buy any Intellectual Property or enter into any agreement with respect to the Intellectual Property of any person or entity, (iii) enter into any agreement with respect to development of any Intellectual Property with a third party;
(c) other than commercial licenses of the Company's software in the ordinary course of business consistent with past practice, sell or enter into any license agreement with respect to the Company Intellectual Property with any person or entity or buy or enter into any license agreement with respect to the Intellectual Property of any person or entity;
(d) other than commercial licenses of the Company's software in the ordinary course of business consistent with past practice, transfer to any person or entity any rights to the Company Intellectual Property;
(e) enter into or amend any Contract pursuant to which any other party is granted distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(f) enter into or amend any Contract pursuant to which as other party is granted marketing or similar rights of any type or scope with respect to any products or technology of the Company;
(g) amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Disclosure Schedule;
(h) commence or settle any litigation;
(i) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company (or options, warrants or other rights exercisable therefor) except for repurchases of shares of Company Capital Stock from employees of the Company in connection with the termination of their employment with the Company;
(j) except for the issuance of shares of Company Capital Stock upon the exercise or conversion of options, warrants or other rights, or convertible securities outstanding on the date hereof, and except for the grant of additional stock options at the fair market value to the persons and in the amounts listed and with the vesting as set forth on Section 4.1(j) to the Disclosure Schedule, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, or accelerate the vesting of any stock options.
(k) cause or permit any amendments to its Articles of Incorporation or Bylaws;
(l) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company's business;
(m) sell, lease, license or otherwise dispose of any of its material properties or assets, except properties or assets which are not Intellectual Property and commercial licenses of the following Company's software in the ordinary course of business and consistent with past practices;
(n) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others other than pursuant to capital leases outstanding as of the date hereof;
(o) grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(p) grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof and disclosed in the Disclosure Schedule, other than pursuant to the extent expressly provided otherwise Company's standard practice of granting two weeks' pay to terminating employees in this Agreement consideration for a release of claims;
(q) adopt any employee benefit plan, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees other than in connection with the regularly scheduled performance reviews of individual employees;
(r) revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(s) pay, discharge or satisfy, in an amount in excess of $100,000 in any one case or $250,000 in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payroll, pre-existing lease obligations or the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(t) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(u) enter into any strategic alliance or joint marketing arrangement or agreement;
(v) other than as consented to specifically requested in writing by Acquirer):Parent or as specified in Section 2.22(i) of the Disclosure Schedule, accelerate the vesting schedule of any of the outstanding Company Options or Company Capital Stock;
(w) hire or terminate employees or encourage employees to resign, excluding those individuals to whom offers have been made and are outstanding as of the date of this Agreement as set forth in Schedule 4.1(w); or
(x) take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (w) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder, or any other action not in the ordinary course of the Company's business and consent with past practice.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (E Piphany Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. QuaTech and DPAC.
(a) During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
, each of QuaTech and DPAC agrees that (a) except to the Company shall conduct extent expressly contemplated by this Agreement or as consented to in writing by the other, or as set forth in Section 4.1 of the DPAC Disclosure Schedule or the QuaTech Disclosure Schedule, as applicable), it will, and will cause its respective subsidiaries to, carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and Taxes when due subject to good faith disputes over such debts or Taxes and to file tax returns (including delinquent tax returns), to pay or perform other obligations (including Taxes) when due, (B) and to use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, use commercially reasonable efforts consistent with past practice to keep available the services of its present officers and key employees and use commercially reasonable efforts consistent with past practice to preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with itit or its subsidiaries, to the end that its goodwill and ongoing businesses business shall be unimpaired at the Closing;Effective Time. Each of party agrees to promptly notify the other party of any event or occurrence known to the party that has had or reasonably would be likely to have a Material Adverse Effect on any party to this Agreement or on any transaction contemplated by this Agreement.
(cb) the Company shall promptly notify Acquirer of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time, except as expressly contemplated in this Agreement (including the Company DPAC Disclosure Schedule and the QuaTech Disclosure Schedule), neither DPAC nor QuaTech shall not, and shall cause each Subsidiary not to, do, cause or permit itself or any of its subsidiaries to do any of the following (except to following, without the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):prior written consent of the other:
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 6.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (except as contemplated by this Agreement or to the extent that Meadowbrook shall conduct otherwise consent in writing) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its all commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
Effective Time (c) and to cause its Subsidiary to do the same). Following the date of this Agreement, the Company shall promptly notify Acquirer Meadowbrook of any change, occurrence or materially negative event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse related to the Company and its Subsidiaries taken together Subsidiary or cause any the business of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the CompanyCompany and its Subsidiary, taken as a whole. Without limiting the generality or effect of the provisions of Section 4.1foregoing, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of expressly contemplated by this Agreement and the Effective TimeAgreement, the Company shall not, and shall cause each not permit its Subsidiary not to, dowithout the prior written consent of Meadowbrook:
(a) Enter into any material commitment or transaction not in the ordinary course of business consistent with past practice;
(b) Transfer to any person or entity any material rights to the Proprietary Rights of the Company, cause other than pursuant to licenses in the ordinary course of business consistent with past practice;
(c) Enter into any material agreements (or material amendments thereto) pursuant to which any unrelated third party is granted marketing, distribution or similar rights of any type or scope with respect to any products of the Company or its Subsidiary other than in the ordinary course of business consistent with past practice;
(d) Amend or otherwise modify, except in the ordinary course of business consistent with past practice, or violate the material terms of, any of the agreements set forth or described in the Disclosure Schedule;
(e) Commence any material litigation;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital 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 or other equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor), except in connection with the restructuring of its indebtedness;
(g) Except for the issuance of shares of Company Stock upon exercise of presently outstanding Company Options or upon conversion of outstanding Company Preferred, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, except in connection with the restructuring of its indebtedness;
(h) Cause or permit any amendments to its Amended and Restated Articles of Incorporation or Bylaws (or other charter documents) except as contemplated by this Agreement;
(i) Acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets in an amount in excess of fifty thousand dollars ($50,000) in the case of a single transaction or in excess of one hundred thousand dollars ($100,000) in the aggregate in any 30-day period;
(j) Sell, lease, license or otherwise dispose of any of its properties or assets in excess of fifty thousand dollars ($50,000), except in the ordinary course of business consistent with past practice;
(k) Except as contemplated by Section 7.12 of this Agreement, incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any of its debt securities or guarantee any debt securities of others;
(l) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee other than pursuant to the existing agreements of the following Company or its Subsidiary;
(m) Adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offers to any person whose aggregate annual base salary would exceed fifty thousand dollars ($50,000) pay or agree to pay any special bonus or special remuneration to any director or employee other than in connection with normal annual bonus and salary adjustments for all non-officers and directors upon consultation with Meadowbrook, or increase the salaries or wage rates of its other employees, except as consistent with the ordinary course of business consistent with past practice;
(n) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
(o) Pay, discharge or satisfy, in an amount in excess of twenty-five thousand dollars ($25,000) (in any one case) or seventy-five thousand dollars ($75,000) (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Financial Statements or that arose in the ordinary course of business subsequent to December 31, 1997 or unless payment of such claim, liability or obligation is due in accordance with its terms or expenses consistent with the extent expressly provided otherwise in provisions of this Agreement incurred in connection with the transactions contemplated hereby and is not in excess of twenty-five thousand dollars ($25,000);
(p) Make or as consented change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(q) Take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 6.1(a) through 6.1(p) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Meadowbrook Rehabilitation Group Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of by the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and pursuant to its terms or the Effective Time:
(a) , the Company and each of its subsidiaries shall, except to the extent that Parent shall conduct otherwise consent in writing, carry on its business solely business, in all material respects, in the usual, regular and ordinary course course, in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) laws and regulations, pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable taxes when due and not extend credit outside of the ordinary course of business consistent with past practicessubject to good faith disputes over such debts or taxes, (C) sell Company products consistent with past practices as pay or perform other material obligations when due subject to license, service and maintenance terms, incentive programsgood faith disputes over such obligations, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice practices and policies to (i) preserve intact its present business organizationsorganization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having with which it has business dealings with itdealings. In addition, the Company will use reasonable efforts to promptly notify Parent of any material event involving the Company's business or operations, to the end extent that its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Company shall promptly notify Acquirer has knowledge of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Companysuch material event. Without limiting the generality or effect of the provisions of Section 4.1In addition, except as set forth on Schedule 4.2permitted by the terms of this Agreement, and except as provided in Article 4 of the Company Schedules, without the prior written consent of Parent, during the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and pursuant to its terms or the Effective Time, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit do any of the following and shall not permit its subsidiaries to do any of the following:
(except to a) Waive any stock repurchase rights, accelerate, amend or change the extent expressly provided otherwise period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in this Agreement or as consented to in writing by Acquirer):exchange for any options granted under any of such plans;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Healtheon Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, except as Acquiror shall otherwise consent in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company will conduct its business in all material respects in the ordinary course consistent with past practices and in material compliance with all applicable Legal Requirements including using its commercially reasonable efforts to:
(a) the Company shall conduct preserve intact its present business solely in the usualorganization, regular properties and ordinary course in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirementsassets;
(b) maintain in effect all of the Company shall Authorizations;
(Ac) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available the services of its present directors, officers and key employees and Key Employees;
(d) preserve its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Closing;.
(ce) manage its working capital (including the Company shall promptly notify Acquirer timing of any change, occurrence or event not collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practices;
(f) maintain its Business or any Subsidiary’s businessassets in good operating condition;
(g) maintain the insurance policies described in Section 2.17, or its books and accounts and its Intellectual Property, in each case, consistent with past practice and in accordance, in all material respects, with applicable Legal Requirements; and
(h) preserve the confidentiality of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse all trade secrets that are material to the Company and its Subsidiaries taken together or cause any of Company’s business in a manner consistent with the conditions to closing set forth in ARTICLE 6 not to be satisfiedCompany’s past practices.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2expressly contemplated by this Agreement, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, except as expressly contemplated by this Agreement, Acquiror shall otherwise consent in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and the Company shall cause each not permit any Company Subsidiary not to, do, cause or permit do any of the following (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):following:
Appears in 1 contract
Samples: Agreement and Plan of Merger
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time:
(a) , the Company agrees, except to the extent that Parent shall conduct its otherwise consent in writing, to carry on the Company's business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practicessuch business, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable best efforts consistent with past practice and policies to preserve intact its the Company's present business organizations, keep available the services of its the Company's present officers and key employees and preserve its the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that its goal of preserving unimpaired the Company's goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s business, or business of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together any material event involving the Company. Except as expressly required by this Agreement or cause any of the conditions to closing as set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business Section 4.1 of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective TimeCompany Disclosure Schedule, the Company shall not, without the prior written consent of Parent:
(a) make any expenditures or enter into any commitment or transaction exceeding $100,000;
(i) sell, license or transfer to any person or entity any rights to any Company Intellectual Property except for non-exclusive license agreements entered into in the ordinary course of business or enter into any agreement with respect to any intellectual property of any person or entity, except for licenses of commercially available software, (ii) enter into any agreement with respect to the development of any intellectual property with a third party except for consulting agreements entered in to in the ordinary course of business which provide for exclusive ownership by the Company of any intellectual property developed thereunder or (iii) or change the methods of establishing pricing or royalties charged by the Company to its customers or licensees, or the methods of establishing pricing or royalties set or charged by persons who have licensed intellectual property to the Company except as required by the terms of agreements currently in effect;
(c) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(d) amend or otherwise modify (or agree to do so), or violate the terms of, any Company Contracts or License Agreements;
(e) commence or settle any litigation;
(f) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Common Stock or Preferred, or split, combine or reclassify any Company Common Stock or Preferred or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock or Preferred, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of Company Common Stock or Preferred (or options, warrants or other rights exercisable therefor) except in accordance with the agreements evidencing Company Options or restricted stock awards;
(g) issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of capital stock of the Company or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, except for shares of Company Common Stock issued upon exercise of Company Options outstanding on the date hereof or pursuant to the Comdisco warrant and shall cause each Subsidiary not to, do, debt referred to in the Company Disclosure Schedule;
(h) cause or permit any amendments to its articles of organization, bylaws or other organizational documents of the following Company;
(except i) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the extent expressly provided Company's business;
(j) except as allowed pursuant to Section 4.1(b) hereof, sell, lease, license or otherwise dispose of any of its properties or assets, except properties or assets which are not Company Intellectual Property and only in this Agreement the ordinary course of business and consistent with past practices;
(k) incur any indebtedness or as consented guarantee any indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(l) grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(m) grant any severance or termination pay (i) to any director or officer, or (ii) to any other employee or contract worker except payments made pursuant to standard written agreements outstanding on the date hereof and disclosed in the Company Disclosure Schedule;
(n) adopt or amend any employee benefit plan, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director, employee or contract worker, or increase the salaries or wage rates of its employees or contract workers except payments made pursuant to standard written agreements in place on the date hereof and disclosed in the Company Disclosure Schedule;
(o) revalue any of its assets, including without limitation writing by Acquirer):down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(p) pay, discharge or satisfy, in an amount in excess of $100,000 in any one case, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than such payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Financials or arising in the ordinary course of business after the date of the Current Balance Sheet;
(q) make or change any material election in respect of Taxes, adopt or change any material accounting method in respect of Taxes, enter into any material closing agreement, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(r) enter into any strategic alliance or joint marketing arrangement or agreement;
(s) take any action to accelerate the vesting schedule of any of the outstanding Company Options or Company Common Stock; (t) hire or terminate any employees or contract workers, or encourage any employees or contract workers to resign from the Company; or
Appears in 1 contract
Samples: Merger Agreement (Ondisplay Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of by the CompanyCompany and Parent. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, each of the Company, Merger Sub, Parent and their respective Subsidiaries shall, except to the Effective Time:
(a) extent that the Company other party shall conduct otherwise consent in writing or as contemplated by this Agreement or as set forth in Schedule 4.1, carry on its business solely in the usual, regular and ordinary course consistent with past practices, in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
laws and regulations (b) the Company shall (A) except where noncompliance would not be reasonably expected to have a Material Adverse Effect), pay and perform all of its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations (including Taxes) when due, (B) and use commercially reasonable efforts consistent with past practice practices and policies to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (Ci) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially reasonable efforts consistent with past practice and policies to preserve substantially intact its present business organizationsorganization, (ii) keep available the services of its present key officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having with which it has significant business dealings with itdealings. In addition, to except as required by the end that its goodwill terms of this Agreement and ongoing businesses shall be unimpaired at the Closing;
(c) the Company shall promptly notify Acquirer of any change, occurrence or event not in the ordinary course of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on in Schedule 4.24.1, without the prior written consent of the other party, during the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, each of the Company, Merger Sub, Parent and the Effective Time, the Company their respective Subsidiaries shall not, and shall cause each Subsidiary not to, do, cause or permit do any of the following following:
(a) waive any stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) grant any severance or termination pay to (i) any officer or (ii) any employee, except with respect to the Company or any of its Subsidiaries, pursuant to applicable law, the existing terms of written agreements outstanding, or policies existing on the date hereof and as previously or concurrently disclosed in writing or made available to the other party, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) transfer or license to any person or otherwise extend, amend or modify any material rights to any Intellectual Property of the Company, any Subsidiary of the Company or Parent, as applicable, or enter into grants to transfer or license to any person future patent rights, other than, with respect to the Company or any Subsidiary of the Company in the ordinary course of business consistent with past practices provided that in no event shall the Company, any Subsidiary of the Company or Parent license on an exclusive basis or sell any Intellectual Property of the Company, any Subsidiary of the Company or Parent as applicable;
(d) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock, or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) except as permitted by Section 5.21, purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or other equity securities or ownership interests of the Company and Parent, as applicable;
(f) issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities;
(g) amend its Charter Documents;
(h) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, in the case of the Company and its Subsidiaries, which are material, individually or in the aggregate, to the business of the Company and its Subsidiaries, taken as a whole, or enter into any joint ventures, strategic partnerships or alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such party’s ability to compete or to offer or sell any products or services;
(i) sell, lease, license, encumber or otherwise dispose of any properties or assets, except with respect to the Company and its Subsidiaries, (A) sales of inventory in the ordinary course of business consistent with past practice, and (B) the sale, lease or disposition (other than through licensing) of property or assets that are not material, individually or in the aggregate, to the business of the Company and its Subsidiaries, taken as a whole;
(j) incur any indebtedness for borrowed money (other than, with respect to the Company and its Subsidiaries, under its existing credit facilities as may be required for working capital needs in the ordinary course of business and, with respect to Parent, as permitted pursuant to Section 5.18) or guarantee any such indebtedness of another Person or Persons, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent or the Company or any Subsidiary of the Company, as applicable, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) adopt or amend any employee benefit plan, policy or arrangement, any employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than, with respect to the Company and its Subsidiaries, offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except, with respect to the Company and its Subsidiaries, in the ordinary course of business consistent with past practices or to conform to the requirements of any applicable law;
(l) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practices or in accordance with their terms, or liabilities recognized or disclosed in the most recent financial statements included in the Parent SEC Reports filed prior to the date of this Agreement or the Company’s Unaudited Financial Statements, as applicable, or incurred since the date of such financial statements, or waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce any confidentiality or similar agreement to which the Company or any Subsidiary of the Company is a party or of which the Company or any Subsidiary of the Company is a beneficiary or to which Parent is a party or of which Parent is a beneficiary, as applicable;
(m) except in the ordinary course of business consistent with past practices, modify, amend or terminate any Material Company Contract or Parent Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) except as required by U.S. GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(o) except, in the case of the Company and its Subsidiaries, in the ordinary course of business consistent with past practices, incur or enter into any agreement, contract or commitment requiring such party to pay in excess of $100,000 in any 12-month period;
(p) settle any litigation, except in the case of the Company or any Subsidiary of the Company, where the consideration given is other than monetary in an amount less than $100,000 or to which an Insider is a party;
(q) make or rescind any Tax elections that, individually or in the aggregate, could be reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of such party, settle or compromise any material income tax liability or, except as required by applicable law, materially change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice;
(r) take any action not provided for or contemplated in this Agreement that would cause the Merger to fail to qualify, as a reorganization within the meaning of section 368(a) of the Code;
(s) form or establish any subsidiary except, in the case of the Company or any Subsidiary of the Company, in the ordinary course of business consistent with prior practice;
(t) permit any Person (to the extent expressly provided otherwise permission is required) to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such plans;
(u) make capital expenditures except, in this Agreement the case of the Company or as consented any Subsidiary of the Company, in accordance with prudent business and operational practices consistent with past practices;
(v) enter into any transaction with or distribute or advance any assets or property to any of its officers, directors, partners, stockholders, managers, members or other Affiliates other than the payment of salary and benefits and tax distributions in the ordinary course of business consistent with past practices; or
(w) agree in writing by Acquirer):or otherwise agree, commit or resolve to take any of the actions described in Section 4.1 (a) through (v) above.
Appears in 1 contract
Conduct Prior to the Effective Time. 4.1 4.1. Conduct of Business of the Company. During the period from the Agreement Date June 3, 1998, and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct otherwise consent in writing, which consent will not be unreasonably withheld or delayed) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) Effective Time. The Company 39 shall promptly notify Parent of any Material Adverse Change related to the Company or its business. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1, the Company shall promptly notify Acquirer not, without the prior written consent of Parent, which consent will not be unreasonably withheld or delayed:
(a) Enter into any change, occurrence commitment or event transaction (other than pursuant to or as contemplated by this Agreement) not in the ordinary course of its Business business consistent with past practice.
(b) Transfer to any Person any rights to the Intellectual Property Rights, except in the ordinary course of business consistent with past practice;
(c) Enter into or amend any agreements pursuant to which any Person is granted marketing, distribution or similar rights of any type or scope or any Subsidiary’s businessthird party royalty rights with respect to any products of the Company, or enter into or amend any strategic alliance, license or sub-license agreement, or joint development agreement;
(d) Amend or otherwise modify, except in the ordinary course of business consistent with past practice, any of the Scheduled Contracts;
(e) Violate the terms of any changeof the Scheduled Contracts in any material manner;
(f) Commence any litigation or any binding dispute resolution process (other than in respect of any breach of or claim arising under this Agreement);
(g) Declare, occurrence set aside or event whichpay any dividends on or make any other distributions (whether in cash, individually stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital 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, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock, except repurchases of unvested shares in connection with terminations of employment in the aggregate ordinary course of business consistent with past practice;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire (including but not limited to Company Options), or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, except (i) the issuance of Company Common Stock upon the exercise of Company Options, and (ii) the grant of Company Options to new hires in the ordinary course of business and in accordance with written guidelines approved by Parent;
(i) Cause or permit any amendments to its Articles of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets (other than assets, immaterial in amount, in the ordinary course of business consistent with past practice) or equity securities of, or by any other changesmanner, occurrences and eventsany business or any corporation, would reasonably be expected partnership, association or other business organization or division thereof, or otherwise acquire or agree to be materially adverse acquire any assets;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(l) Incur any indebtedness for borrowed money other than from Parent or guarantee any such indebtedness or issue or sell any debt securities of the Company or guarantee any debt securities of others;
(m) Enter into or amend any employment agreements, oral or written, increase the compensation payable or to become payable by it to any of its officers, directors, or consultants over the amount payable as of March 31, 1998, or adopt or amend any employee benefit plan or arrangement (oral or written) (including any amendment to the Option Plan or the agreements thereunder), or increase the salaries or wage rates of its employees, except in the ordinary course of the Company consistent with past practice;
(n) Terminate the employment of any executive officer or vice president (including any Key Employee or Other Management Employee) or grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to written agreements or other legally binding commitments disclosed to Parent in writing outstanding on the date hereof;
(o) Revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable, other than in the ordinary course of business;
(p) Pay, discharge or satisfy, in an amount in excess of $50,000 (in any one case) or $100,000 (in the aggregate), any Liability, other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities (1) reflected or reserved against in the Company Financial Statements (or the notes thereto) or (2) that arose in the ordinary course of business consistent with past practice subsequent to March 31, 1998 and its Subsidiaries taken together which are expenses not prohibited by the provisions of this Agreement;
(q) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(r) Amend or otherwise take any action that would permit or cause any Company Option to accelerate in contemplation of or as a consequence of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct Merger or the other transactions contemplated by this Agreement; 41 (s) Enter into or modify any new or existing agreements for the lease or purchase of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):real property; or
Appears in 1 contract
Samples: Merger Agreement (Peoplesoft Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time:
(a) , the Company agrees (unless the Company is required to take such action pursuant to this Agreement or Broadcom shall conduct give its prior consent in writing which consent shall not be unreasonably withheld) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies in any event consistent with the Operating Plan provided prior to collect accounts receivable the date of this Agreement to Broadcom (including continuing to hire new employees at a rate at least at the levels provided in the Operating Plan) (any material deviations from, or material modifications to, the Operating Plan shall be required to be approved in advance by Broadcom), to pay its Liabilities and Taxes consistent with the Company's past practices (and in any event when due), to pay or perform other obligations when due and not extend credit outside of the ordinary course of business consistent with the Company's past practicespractices (other than Liabilities, (C) sell Company products Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with past practices as such business, to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its all commercially reasonable efforts consistent with past practice and institute all policies required to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with it, to all with the end that express purpose and intent of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) Effective Time. Except as expressly contemplated by this Agreement, the Company shall promptly notify Acquirer not, without the prior written consent of Broadcom, knowingly take or agree in writing or otherwise to take, any change, occurrence or event not action that would result in the ordinary course occurrence of its Business or any Subsidiary’s business, or of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to the Company and its Subsidiaries taken together or cause any of the conditions changes described in Section 2.9 (other than actions contemplated by the Operating Plan) or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Broadcom's closing set forth obligations in ARTICLE 6 Section 6.1 or Section 6.3 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Company. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2foregoing, during the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and or the Effective Time, except as contemplated by the Operating Plan or as set forth in the Company Disclosure Schedule or as required or expressly permitted by this Agreement, the Company shall not, and shall cause each Subsidiary not to, do, cause or permit any of the following (except to following, without the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer):prior written consent of Broadcom:
Appears in 1 contract
Samples: Merger Agreement (Broadcom Corp)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement Date and continuing until the earlier of (i) the termination of this Agreement and (ii) the Effective Time:
(a) , the Company agrees (except to the extent that Parent shall conduct otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, except as contemplated by this Agreement) to carry on its business solely in the usual, regular and ordinary course in substantially the same manner as heretofore conducted (except conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquirer) and in compliance with all applicable Legal Requirements;
(b) the Company shall (A) pay and perform all of its debts and other obligations (including Taxes) when due, (B) use commercially reasonable efforts consistent with past practice and policies such business, to collect accounts receivable when due and not extend credit outside of the ordinary course of business consistent with past practices, (C) sell Company products consistent with past practices as to license, service and maintenance terms, incentive programs, and revenue recognition and (D) use its commercially all reasonable efforts consistent with past practice and policies to preserve intact its present business organizationsorganization, keep available the services of its present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to all with the end that goal of preserving unimpaired its goodwill and ongoing businesses shall be unimpaired at the Closing;
(c) the Effective Time. The Company shall promptly notify Acquirer Parent of any change, event or occurrence or event emergency not in the ordinary course of its Business or any Subsidiary’s business, or of and any change, occurrence or material event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected to be materially adverse to involving the Company and or its Subsidiaries taken together or cause any of the conditions to closing set forth in ARTICLE 6 not to be satisfied.
4.2 Restrictions on Conduct of Business of the Companybusiness. Without limiting the generality or effect of the provisions of Section 4.1, except as set forth on Schedule 4.2, during During the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, except as expressly contemplated by this Agreement or disclosed in Schedule 4.1, the Company shall not, without the prior written consent of Parent during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time (which consent shall cause each Subsidiary not tobe unreasonably withheld or delayed):
(a) Transfer to any person or entity any rights to the Company Intellectual Property Rights (other than pursuant to End-User Licenses in the ordinary course of business);
(b) Enter into or amend any agreements pursuant to which any other party is granted marketing, dodistribution or similar rights of any type or scope with respect to any products of the Company;
(c) Amend or otherwise modify (or agree to do so), cause except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(d) Commence any litigation;
(e) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor) other than repurchases made in accordance with agreements referred to on the Company Schedules;
(f) Other than (1) repurchases made in accordance with agreements referred to on the Company Schedules, (2) the granting of stock options in the ordinary course of business, consistent with past practice not to exceed in the aggregate 100,000 in any two month period, provided, however, that that Company shall be entitled to grant such additional options only to non-officer, new employees and that such optionees are not granted any change of control benefits or other acceleration provisions in connection with such grants, or (3) the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options, Company Options granted in the future in accordance with this Section 4.1, the Comdisco Rights, or currently outstanding shares of Company Preferred Stock, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities;
(g) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(i) Acquire or agree to acquire any assets in an amount in excess of $100,000 in the case of a single transaction or in excess of $250,000 in the aggregate in any 60-day period;
(j) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness outside the ordinary course of business or issue or sell any debt securities of the following Company or guarantee any debt securities of others;
(l) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee, except payments made pursuant to standard written agreements previously disclosed to Parent on the extent expressly provided otherwise Company Disclosure Schedules;
(m) Adopt or amend any employee benefit plan, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees or, except in the ordinary course of business consistent with past practices, extend employment offers;
(n) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(o) Pay, discharge or satisfy, in an amount in excess of $250,000 (in the aggregate; provided, that in the event that such amount exceeds $100,000, the Company shall have satisfied its obligations identified in Schedule 4.1(o)), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or expenses consistent with the provisions of this Agreement incurred in connection with any transaction contemplated and permitted hereby;
(p) Make or as consented change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Enter into any strategic alliance, development or joint marketing agreement; provided, that the foregoing is not intended to prevent the Company from entering into transactions that are in the ordinary course of business and consistent with its past practices; or
(r) Take, or agree in writing by Acquirer):or otherwise to take, any of the actions described in Sections 4.1(a) through (q) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
