Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, 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, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any materially negative event related to the Company or its business. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1, 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. (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 marketing, distribution or similar rights of any type or scope with respect to any products of the Company, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights. (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, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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); (g) Except for the issuance of shares of Company Common Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employment, 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 material, individually or in the aggregate, to the business of the Company; (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 or issue or sell any debt securities of the 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 outstanding on the date hereof; (m) Subject to the provisions of Section 4.3 below, adopt or amend any employee benefit plan, or enter into any employment contract, 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; (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 $50,000 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 Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998; (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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder; (r) Enter into any strategic alliance, joint development or joint marketing agreement; or (s) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (r) 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 (Baan Co N V)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees and the Principal Stockholders agree (except to the extent that Parent the other shall otherwise consent in writing) ), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, 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, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any materially negative event related to or occurrence or emergency not in the Company or ordinary course of its business, and any material event involving it. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1Agreement, 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.
(bi) Sell or enter into any license agreement with respect to the Company Intellectual Property with any person or entity or (ii) buy or enter into any license agreement with respect to the Intellectual Property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Company's Intellectual Property Rights (other than pursuant to End-User Licenses end user licenses in the ordinary course of business);
(cd) Enter into 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 or technology of the Company, ;
(e) Enter into or amend any Contract pursuant to which any other than any such party is granted marketing, distribution and or similar agreements in the ordinary course rights of business which in any event (i) have a term not exceeding one year type or are terminable on notice from the Company scope with respect to any products or technology of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(df) 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 Contracts set forth or described in the Company SchedulesDisclosure Schedule;
(eg) Commence any litigation, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such litigation;
(fh) 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);
(gi) Except for the issuance of shares of Company Common Capital Stock upon exercise or conversion of presently currently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employmentwarrants, 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;
(hj) Cause or permit any amendments to its Articles of Incorporation or Bylaws;
(ik) 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 the Company;
(jl) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(km) 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;
(ln) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(o) 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 hereofhereof and disclosed in the Company Disclosure Schedule;
(mp) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, or enter into any employment contract, 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;
(nq) 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;
(or) Accelerate the vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company;
(s) Pay, discharge or satisfy, in an amount in excess of $50,000 10,000 (in any one case case) or 100,000 $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 Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998);
(pt) 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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(ru) Enter into any strategic alliance, joint development alliance or joint marketing arrangement or agreement; or;
(sv) Hire or terminate employees or encourage employees to resign other than in the ordinary course of business;
(w) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rv) 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 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers and key employees (including without limitation the Key Employees) and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The Company shall promptly immediately notify Parent of any materially negative event related to or occurrence or emergency not in the Ordinary Course of Business, and any material event involving or adversely affecting the Company or its business. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1Agreement, the Company shall not, without the prior written consent of Parent:
(a) Enter into any commitment commitment, activity or transaction not in the ordinary course Ordinary Course of business.Business;
(b) Transfer Except as set forth in Part 4.1(b) of the Company Disclosure Letter and except for the granting of non-exclusive licenses of object code relating to the bundling of the Company's products entered into in the Ordinary Course of Business, transfer to any person or entity any rights to the any Company Intellectual Property Rights (other than pursuant to Endend-User Licenses user licenses in the ordinary course Ordinary Course of business)Business) or enter into any agreement with respect to Company Intellectual Property (including the license thereof) with any person or entity;
(c) Enter into Hire or amend terminate any agreements pursuant employees or consultants (other than terminations for cause) or encourage any employees to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of resign from the Company, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(d) Amend or otherwise modify (or agree to do so), except in the ordinary course Ordinary Course of businessBusiness, or violate the terms of, any of the agreements set forth or described in the Company SchedulesDisclosure Letter;
(e) Commence or settle any litigation, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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)) except for (i) repurchases of Company Capital Stock upon the termination of service of any service providers of Company in accordance with the standard terms set forth in the agreements governing such repurchases, all of which agreements have been provided or made available to Parent, (ii) conversion of Company Preferred Stock and (iii) exercises or conversion of Company Convertible Securities;
(g) Except for the issuance of shares of Company Common Capital Stock upon exercise or conversion of presently outstanding Company Options Preferred Stock or the grant of stock options to new employees pursuant to outstanding written offers of employmentCompany Convertible Securities, issue, sell, grant, deliver contract to issue, grant or sell sell, or authorize or propose the issuance, grantdelivery, delivery or sale of, or purchase or propose the purchase of, of any shares of its capital stock Company Capital Stock or securities convertible into, or subscriptionsexercisable or exchangeable for, rights, warrants or options to acquireshares of Company Capital Stock, or other agreements any securities, warrants, options or commitments rights to purchase any of any character obligating it to issue any such shares or other convertible securitiesthe foregoing;
(h) Cause or permit any amendments to its Articles 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 acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(j) Sell, lease, license or otherwise dispose of any of its the assets or properties or assets, except of Company which are not Company Intellectual Property other than in the ordinary course Ordinary Course of businessBusiness (which shall include but not be limited to the performance of obligations under contractual arrangements listed on the Company Disclosure Letter existing as of the date hereof), or create any security interest in such assets or properties;
(k) Incur Grant any loan to any person or entity, incur any indebtedness for borrowed money or guarantee any such indebtedness or indebtedness, issue or sell any debt securities of the Company or securities, guarantee any debt securities of others, purchase any debt securities of others or amend the terms of any outstanding agreements related to borrowed money, except for advances to employees for travel and business expenses in the Ordinary Course of Business, or otherwise incur any financial obligation other than in the Ordinary Course of Business;
(l) Grant any severance or termination pay (i) to any director or officer or (ii) to any employee or consultant or increase in the salary or other employee except payments made pursuant compensation payable or to standard written agreements outstanding on become payable by the date hereof;
(m) Subject Company to any of its officers, directors, employees or advisors, or declare, pay or make any commitment or obligation of any kind for the provisions payment by Company of Section 4.3 belowa bonus or other additional salary or compensation to any such person, or adopt or amend any employee benefit plan, plan or enter into any employment contract, 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;
(nm) 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 Ordinary Course of businessBusiness;
(n) Accelerate the collection of notes or accounts receivable other than in the Ordinary Course of Business;
(o) PayTake any action to accelerate the vesting schedule of any of the outstanding Company Options or Company Capital Stock;
(p) Except for the payment of Third Party Expenses, pay, discharge or satisfy, in an amount in excess of $50,000 25,000 (in any one case case) or 100,000 $50,000 (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 Ordinary Course of business Business of liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998Financials;
(pq) Except for Third Party Expenses, incur any liabilities or commit to make any payments to any third party other than in the Ordinary Course of Business;
(r) 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;
(qs) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock Except as set forth in Part 4.1(s) of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests Disclosure Schedule, enter into any strategic alliance or any other action that would jeopardize the tax-free reorganization hereunderjoint development arrangement or agreement;
(rt) Enter Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(u) Waive or commit to waive any rights with a value in excess of $15,000 (in any one case) or $25,000 (in the aggregate);
(v) Cancel, materially amend or renew any insurance policy other than in the Ordinary Course of Business;
(w) Alter, or enter into any strategic alliancecommitment to alter, its interest in any corporation, association, joint development venture, partnership or joint marketing agreementbusiness entity in which the Company directly or indirectly holds any interest on the date hereof; or
(sx) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rw) 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 (Tibco Software Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, 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, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall promptly notify Parent of any materially negative event related to or occurrence or emergency not in the ordinary course of business, and any material event adversely affecting the Company or its business. Except as expressly contemplated by this Agreement Agreement, or disclosed in Schedule 4.1, 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.
(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 in any material respect any agreements pursuant to which any other party is granted manufacturing, marketing, distribution (other than End-User Licenses) or similar rights of any type or scope with respect to any products of the Company, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(d) Amend or otherwise modify in any material respect (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 SchedulesSchedules where such violation would have a Material Adverse Effect;
(e) Commence any litigation, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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 CompanyCompany (except with respect to Company Options outstanding on or prior to the date hereof), 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 rights under agreements with employees;
(g) Except for the issuance of shares of Company Common Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employment, issueIssue, 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 for the issuance of shares upon the exercise of Company Options;
(h) Cause or permit any amendments to its Articles 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 acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(j) Sell, lease, license or otherwise dispose of any of its material properties or assets, except in the ordinary course of businessbusiness and consistent with past practice;
(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 (i) to any director director, officer, employee or officer or (ii) to any other employee consultant, except payments made pursuant to standard written agreements outstanding on the date hereof;
(m) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offersoffer, pay or agree to pay any special bonus or special remuneration to any director director, employee or employeeconsultant, 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 other than in the ordinary course of businessbusiness and consistent with past practice;
(o) Pay, discharge or satisfy, in an amount in excess of $50,000 10,000 in any one case or 100,000 $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 in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business prior to or subsequent to August 31February 29, 19982000;
(p) Make or change any material election in respect of Taxes, adopt or materially 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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company action which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would 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) Materially alter, or enter into any commitment to materially 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
(sv) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (ru) 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 (New Era of Networks Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement and (ii) the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, 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, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any materially negative event related to or occurrence or emergency not in the ordinary course of its business, and any material event involving the Company or its business. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1, 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.
(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 marketing, distribution or similar rights of any type or scope with respect to any products of the Company, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(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, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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);
(g) Except for the issuance of shares of Company Common Capital Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to Company Preferred Stock, or presently outstanding written offers of employmentwarrants, 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 ;
(j) Acquire or agree to acquire any assets which are material, individually in an amount in excess of $10,000 in the case of a single transaction or in excess of $25,000 in the aggregate, to the business of the Companyaggregate in any 30-day period;
(jk) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(kl) 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;
(lm) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee employee, except payments made pursuant to standard written agreements outstanding on the date hereof;
(mn) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, or enter into any employment contract, 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; provided that the Company may cause the vesting period of stock options granted to employees to be reduced from four to two years;
(no) 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;
(op) Pay, discharge or satisfy, in an amount in excess of $50,000 10,000 (in any one case case) or 100,000 $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 Financial Statements (Balance Sheet or expenses consistent with the notes thereto) or that arose provisions of this Agreement incurred in the ordinary course of business subsequent to August 31, 1998connection with any transaction contemplated and permitted hereby;
(pq) 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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(r) Enter into any strategic alliance, joint development or joint marketing agreement; or
(s) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (r) 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)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During Except as set forth on Schedule 4.1, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and pursuant to Section 8.1 or the Effective Time, each of the Company and its subsidiaries agrees (except to the extent that Parent shall otherwise consent in writing) ), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's and its subsidiaries' present business organizationorganizations, 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, all with the goal of preserving unimpaired the Company's and its subsidiaries' goodwill and ongoing businesses at the Effective Time; it being understood that Parent and the Company shall keep each other informed of developments to, and relating actions to be taken in connection with the matters described in Schedule 2.4 hereto. The Company shall promptly notify Parent of (i) any materially negative event related to or occurrence or emergency not in the ordinary course of business of the Company or any of its businesssubsidiaries, (ii) any material event involving the Company or any of its subsidiaries, and (iii) any exercise of any of the Company Options. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1Agreement, each of the Company and its subsidiaries shall not, without the prior written consent of Parent:
(a) Enter into any commitment or transaction not in the ordinary course of business.business or any commitment or transaction of the type described in Section 2.7 hereof;
(b) Transfer to any person or entity any rights to the Company Company's Intellectual Property Rights (other than pursuant to End-User Licenses object code end user licenses in the ordinary course of business);
(c) Enter into 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, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(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 Schedulesschedules;
(e) Commence any litigation, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such litigation;
(f) Declare, set aside Declare 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);
(g) Except for the issuance of shares of Company Common Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employmentCompany 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;
(h) Cause or permit any amendments to its Articles Certificate of Incorporation or Bylaws;
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any a substantial portion of the 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 the Company;
(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 (except for draws under its revolving credit facility in the ordinary course of business) 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 (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;
(m) Subject to Except in effect on the provisions of Section 4.3 below, date hereof and as set forth in Schedule 4.1(m) adopt or amend any employee benefit plan, or enter into any employment contract, 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;
(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 businessbusiness except in connection with the Company's audit in conformity with GAAP;
(o) Pay, discharge or satisfy, in an amount in excess of $50,000 10,000 (in any one case case) or 100,000 $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 in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998);
(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;assessment
(q) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(r) Enter into any strategic alliance, joint development alliance or joint marketing arrangement or agreement; or;
(sr) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rq) 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 (Network Associates Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and pursuant to Section 8.1 or the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) writing which consent shall not be unreasonably withheld or delayed), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its the Company's present business organizationorganizations, 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, all with the goal of preserving unimpaired its the Company's goodwill and ongoing businesses at the Effective Time; it being understood that Parent and Company shall keep each other informed of developments to, and relating actions to be taken in connection with the matters described in Schedule 2.4 hereto. The Company shall promptly notify Parent of any materially negative event related or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Prior to the Effective Date, without the express prior written consent of Parent, the Company or its businessshall not spend any portion of the McAfee Loan. Except In addition, except as expressly contemplated by this Agreement or disclosed in Schedule 4.1Agreement, 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.business or any commitment or transaction of the type described in Section 2.7 hereof;
(b) Transfer to any person or entity any rights to the Company Company's Intellectual Property Rights (other than pursuant to End-User Licenses end user licenses in the ordinary course of business);
(c) Enter into 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, other than any such marketing, distribution and similar agreements in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.;
(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 Schedulesschedules;
(e) Commence any litigation, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such litigation;
(f) Declare, set aside Declare 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, 35 directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(g) Except for the issuance of shares of Company Common Capital Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employment, and 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 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 Certificate of Incorporation or BylawsBylaws (except to the extent to eliminate the preferences of the Series A Preferred and Series B Preferred thereunder);
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any a substantial portion of the 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 the Company;
(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 or issue or sell any debt securities of the 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 outstanding on the date hereof;
(m) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, or enter into any employment contract, 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;
(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 $50,000 10,000 (in any one case case) or 100,000 $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 Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998);
(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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(r) Enter into any strategic alliance, joint development alliance or joint marketing arrangement or agreement; or
(sr) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rq) 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 (Network Associates Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement pursuant to the provisions of Section 8.1 hereof, and (ii) the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, 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, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any materially negative event related to or occurrence or emergency not in the ordinary course of its business, and any material adverse event involving the Company or its business. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1, 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.
(b) Transfer to any person or entity any rights to the Company Intellectual Property Rights (other than pursuant to End-User Licenses licenses in the ordinary course of business);
(c) Enter into 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, other than any such marketing, distribution and similar agreements except in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case without penalty to the Company), and (ii) do not convey exclusive rights.business;
(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, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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 , except as contemplated by Section 5.15, repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(g) Except for the issuance of shares of Company Common Capital Stock upon exercise or conversion of presently outstanding Company Options Options, Company Warrants or the grant of stock options to new employees pursuant to outstanding written offers of employmentCompany 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, except for no more than an aggregate of 166,000 options granted to new and/or current employees of the Company in the ordinary course of business; provided, that under no circumstances shall the Company grant any options to officers or directors of the Company, except for 20,000 options granted to Petex Xxxxxxxx; xxd, provided, further that under no circumstances shall such options contain provisions that provide for the acceleration of vesting upon the Closing or upon such employees' termination after the Closing;
(h) Cause or permit any amendments to its Articles 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 acquire ;
(j) Acquire or agree to acquire any assets which are material, individually in an amount in excess of $75,000 in the case of a single transaction or in excess of $150,000 in the aggregate, to the business of the Companyaggregate in any 30-day period;
(jk) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(kl) Incur any indebtedness for borrowed money (other than under the Company's existing lines of credit or equipment lease lines in an amount not to exceed $180,000) or guarantee any such indebtedness or issue or sell any debt securities of the Company or guarantee any debt securities of others;
(lm) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee employee, except payments made pursuant to standard written agreements outstanding on the date hereof;
(mn) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offersoffers (except to the extent required in the ordinary course of business and consistent with past practice), 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;
(no) Modify or agree to modify the terms of vesting of any outstanding Company Options or restricted Company Capital Stock;
(p) 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 businessbusiness or consistent with past practice;
(oq) Pay, discharge or satisfy, in an amount in excess of $50,000 25,000 (in any one case case) or 100,000 $50,000 (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 Financial Statements (or the notes thereto) or that arose expenses consistent with the provisions of this Agreement incurred in the ordinary course of business subsequent to August 31, 1998connection with any transaction contemplated and permitted hereby;
(pr) 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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(rs) Enter into any strategic alliance, joint development or joint marketing agreement; or
(st) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rq) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.. For the purposes of this Section 4.1, Davix Xxxxxxxx, xx his designee, shall have authority to provide written consent to any such action on behalf of the Parent
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Conduct Prior to the Effective Time. 4.1 Conduct of Business of the Company. During the period from the date ---------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement and or the Effective Time, the Company agrees (except to the extent that Parent Splash shall otherwise consent in writing) ), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its debts and Taxes when duedue unless validly withheld, to pay or perform other obligations when due, and, to the extent consistent with such businessbusiness and except as agreed to by Splash and the Company, to use all reasonable efforts consistent with past practice and policies to preserve intact its the Company's present business organization, keep available the services of its present officers and key employees and preserve its their relationships with customers, suppliers, distributors, licensors, licensees, customers and others having business dealings with it, all with the goal of preserving unimpaired its the Company's goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent Splash of any materially negative event related to or occurrence or emergency not in the Company or its businessordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement or disclosed in Schedule 4.1Agreement, the Company (and each of its subsidiaries) shall not, without the prior written consent of ParentSplash:
(a) Enter into any commitment or transaction not in the ordinary course of business.business or any commitment or transaction of the type described in Section 2.6 hereof;
(b) Transfer to any person or entity any material rights to the Company Company's Intellectual Property Rights (other than pursuant to End-User Licenses such transfers effectuated in the ordinary course of business);
(c) Enter into or amend any agreements not cancelable by the Company without penalty on ninety (90) days notice or less 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;
(d) Materially amend, terminate or violate any distribution agreement or material contract, agreement or license which the Company is a party or by which it is bound other than any such marketing, distribution and similar agreements termination by the Company pursuant to the terms thereof in the ordinary course of business which in any event (i) have a term not exceeding one year or are terminable on notice from the Company of not more than 90 days (in each case and without financial penalty to the Company), and (ii) do not convey exclusive rights.
(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, except as is deemed necessary by the Company to protect and defend the Company's Intellectual Property Rights (in which case the Company shall give prompt notice to Parent of its intent to commence such action and shall (subject to attorney-client privilege requirements) keep Parent reasonably informed of all material activity in such 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 stockCompany Capital Stock, or split, combine or reclassify any of its capital stock 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 capital stock of the CompanyCompany Capital Stock, or or, repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock Company Capital Stock (or options, warrants or other rights exercisable therefor);
(g) Except for the issuance of shares of Company Common Stock upon exercise or conversion of presently outstanding Company Options or the grant of stock options to new employees pursuant to outstanding written offers of employmentConvertible Promissory Note, 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 Organization or BylawsBylaws (or comparable organizational documents);
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any of the 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 the Company;
(j) Sell, lease, license or otherwise dispose of any of its properties or assets, assets except in the ordinary course of business;
(k) Incur any indebtedness for borrowed money (except with respect to indebtedness incurred by the Company in the ordinary course of business and under existing term loans or revolving credit lines) 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 (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereofhereof and disclosed in Section 2.11(a) of the Company Disclosure Schedule;
(m) Subject to the provisions of Section 4.3 below, adopt Adopt or amend any employee benefit plan, or enter into any employment contract, 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 employeesemployees other than hirings and terminations in the ordinary course of business and other than customary increases associated with regular reviews scheduled during such period;
(n) Revalue any of its assetsassets including, including without limitation 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 $50,000 10,000 (in any one case case) or 100,000 $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the ordinary course of business of or liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to August 31, 1998);
(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 options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that would jeopardize the tax-free reorganization hereunder;
(r) Enter into any strategic alliancedevelopment, joint development marketing or joint marketing other strategic arrangement or agreement; or
(sr) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (rq) above, or any other action that would prevent the Company from performing or cause the Company not to perform the transactions contemplated herein or its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
