Forbearance of the Company. In furtherance and not in limitation of Section 5.1, during the period from the date of this Agreement and continuing until the earlier of the valid termination of this Agreement pursuant to Section 9.1 or the Closing Date, except as expressly contemplated by this Agreement and except as expressly set forth in Section 5.2 of the Disclosure Schedule, the Company shall not (and the Sellers shall cause the Company not to): (a) cause or permit any modifications, amendments or changes to its memorandum and articles of association and other constitutive documents of the Company; (b) 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, split, combine or reclassify any Company capital stock, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company capital stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company capital stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Vested Company Options outstanding and as in effect on the date hereof; provided, however, that the Company may grant the new options to purchase Ordinary Shares of the Company set forth in Section 5.2(b) of the Disclosure Schedule to the employees and service providers, and in the share amounts, as set forth therein (the “Planned Options”) in accordance with applicable law; (c) issue, grant, deliver or sell or authorize or propose or agree to or enter into any agreement or undertaking to undertake any capital reduction, the issuance, grant, delivery or sale of, or purchase or propose the purchase of, or redeem, or repay, any Company capital stock, or equity-based awards (whether payable in cash, stock or otherwise) or any securities or other forms of instruments (howsoever called) convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities, bonus issue or stock split, except for the issuance of Company capital stock pursuant to the exercise of Vested Company Options outstanding as of the date of this Agreement in accordance with their terms as in effect on the date hereof, and the Planned Options; (d) form or dissolve, or enter into any commitment to form or dissolve, a subsidiary, or acquire, or enter into any commitment to acquire, an interest in any corporation, association, joint venture, partnership or other business entity or division thereof; (e) make or agree to make any capital expenditure or commitment exceeding USD $10,000 individually or USD $50,000 in the aggregate other than the capital expenditures set forth in Section 5.2(e) of the Disclosure Schedule; (f) dispose or agree to dispose of any assets of the Company or any business enterprise or division thereof (including any of the legal or beneficial interest of the Company in any other corporation (if any) outside the ordinary course of the business of the Company and consistent with past practice; (g) enter into any agreement, contract or commitment for (i) the sale, lease, license or transfer of any Company Intellectual Property or any agreement contract or commitment or modification or amendment to any agreement with respect to Company Intellectual Property with any Person (other than non-exclusive licenses of the Company Products to end-users pursuant to Standard Form Agreements); (ii) the purchase or license of any Intellectual Property or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property or Intellectual Property Rights of any Person; (iii) any change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights to the Company, or (iv) agree to terminate or permit the loss or lapse (including registrations and applicable) of any Company Intellectual Property, Company Intellectual Property Rights or Intellectual Property Rights); (h) incur any Indebtedness exceeding USD $10,000 individually or USD $50,000 in the aggregate (other than the obligation to reimburse employees for travel and business expenses or indebtedness incurred in connection with the purchase of goods and services, each in the ordinary course of the Company’s business consistent with past practices), issue or sell any debt securities, create a Lien over any asset of the Company or amend the terms of any outstanding loan agreement; (i) make any loan or advance to any Person (except for advances to employees for reasonable business travel and expenses in the ordinary course of business consistent with past practice), purchase debt securities of any Person or guarantee any Indebtedness of any Person; (j) (A) commence or settle any Action or threat of any Action by or against the Company or relating to any of their respective businesses, properties or assets; or (B) make any filing or registration with (including the making of any payment or fees in relation thereto), or enter into any settlement, compromise or other similar agreement with, any Governmental Entity; (k) compromise, settle, dispute in court or waive a right in relation to any employment dispute, including claims or matters raised by any individual, class of employees, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding, claiming or alleging any labor issue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any unlawful employment or labor-related practice, breach or action with respect to the Company; (l) (A) pay, discharge, release, waive or satisfy any claims, rights or Liabilities, other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected on the Current Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date; or (B) issue or agree to issue any material refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company; (m) (A) adopt or change accounting principles, standards, methods or practices (including any change in depreciation or amortization policies or rates or any change to practices that would impact the methodology for recognizing revenue) other than as required by Singapore FRS; or (B) (i) accelerate or delay the payment of, or agree to any change in the payment terms of, including by offering discounts, any accounts payable or other Liabilities or accounts receivable (including unbilled accounts receivable), deferred revenue or notes payable, (ii) modify its cash management practices in a manner inconsistent with past practice, or (iii) do anything that would have the effect of cause the working capital position of the Company to be inconsistent with historical levels and trends; (n) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any agreement in respect of Taxes, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, make or request any Tax ruling, enter into any Tax sharing or similar agreement or arrangement, enter into any transactions giving rise to deferred gain or loss, amend any Tax Return or file any Tax Return including any estimated Tax Return or other material Tax Return that takes any position which is inconsistent with the Company’s past practices unless a copy of such Tax Return has been submitted to Buyer for review a reasonable period of time prior to filing; (o) adopt, amend or terminate, or start a termination process of, any Company Benefit Plan, including any indemnification agreement and any Contract with a labor union or collective bargaining agreement, or enter into or amend any Company Benefit Plan; (p) hire any Person or terminate any Employee, including any officer of the Company, promote, demote or make any other change to employment status, title, office or position or materially reduce the responsibilities of any Employee; (q) remove or request the resignation of any member of the Board of Directors of the Company, or agree to do any of the foregoing; (r) except for the increases in compensation set forth in Section 5.2(r) of the Disclosure Schedule or as may be required to comply with applicable Laws, increase or make any other change that would result in increased cost to the Company to the salary, wage rate, incentive compensation opportunity, employment status, title or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; (s) make any declaration, payment, commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) of a severance payment or other change in control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any Employee, except payments made pursuant to written agreements existing on the date hereof and disclosed in Section 5.2(s) of the Disclosure Schedule; (t) take any action to accelerate the vesting or payment of, or otherwise modify the terms of any of the outstanding Company Stock Options or accelerate the vesting or payment of, any other compensation to any Employee; (u) cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or fail to renew (on substantially similar terms) any insurance policy of the Company; (v) send or issue any communications (including electronic communications) to Employees regarding this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby (other than to Employees involved in the negotiation of this Agreement or the Transaction Documents in course of negotiation of this Agreement or the Transaction Documents) or make any representations to Employees that, in each case, are inconsistent with this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, including any representations regarding offers of employment from Buyer; (w) (i) terminate, amend, waive, or modify in any material manner relative to such Contract or the business or operations of the Company or any Subsidiary, or violate, the terms of any Contract, (ii) enter into any Contract which would have constituted a Company Contract listed on Schedule 3.10(a) of the Disclosure Schedule had such Contract been entered into prior to the date hereof, or (iii) enter into any agreement, arrangement or obligation with any Seller or in which any Seller is interested; or (x) take, commit, or agree in writing or otherwise to take, any of the actions described in clauses (a)-(w) of this Section 5.2, or any other action that would (i) prevent the Company or any Subsidiary, or any of the Sellers, from performing, or cause the Company or any Subsidiary, or any Sellers, not to perform, its covenants or agreements hereunder or (ii) cause or result in any of its representations and warranties set forth herein being untrue or incorrect.
Appears in 2 contracts
Samples: Share Purchase and Sale Agreement, Share Purchase and Sale Agreement (Zendesk, Inc.)
Forbearance of the Company. In furtherance of and not without limiting anything in limitation of Section 5.1, during the period from the date of this Agreement and continuing until the earlier of the valid termination of this Agreement pursuant to Section 9.1 or the Closing DateClosing, except as expressly contemplated by this Agreement and except as expressly set forth in Section 5.2 of the Disclosure Schedule, the Company shall not (not, and the Sellers Seller shall cause the Company not to, without the prior written consent of Buyer (such consent not to be unreasonably conditioned, withheld or delayed):
(a) form any Subsidiary or cause or permit any modifications, amendments or changes to its memorandum the Governing Documents except as may be required by the Transactions (including, for the avoidance of doubt, the Reorganization) in form and articles of association and other constitutive documents of the Companysubstance satisfactory to Buyer;
(b) notwithstanding anything set forth in Section 5.2 of the Disclosure Schedule to the contrary, (i) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock shares or property) in respect of any Company capital stockSecurities, or split, combine or reclassify any Company capital stock, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company capital stockSecurities, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company capital stock Securities, (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Vested Company Options outstanding and as in effect on the date hereof; provided, however, that the Company may grant the new options to purchase Ordinary Shares of the Company set forth in Section 5.2(b) of the Disclosure Schedule to the employees and service providers, and in the share amounts, as set forth therein (the “Planned Options”) in accordance with applicable law;
(cii) issue, pledge, dispose of, grant, deliver transfer, deliver, encumber or sell or authorize or propose or agree to or enter into any agreement or undertaking to undertake any capital reduction, the issuance, pledge, disposition, grant, delivery transfer, delivery, encumbrance or sale ofof Company Securities, (iii) grant any option or issue any warrant to purchase or subscribe for any Company Securities or issue any interests convertible into Company Securities, or purchase (iv) amend, adjust or propose the purchase of, or redeem, or repay, modify any Company capital stock, or equity-based awards (whether payable in cash, stock or otherwise) or any securities or other forms of instruments (howsoever called) convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities, bonus issue or stock split, except for the issuance of Company capital stock pursuant to the exercise of Vested Company Options outstanding as of the date of this Agreement in accordance with their terms as in effect on the date hereof, and the Planned OptionsSecurities;
(dc) form sell, lease, abandon, license or dissolve, otherwise transfer or enter into any commitment to form or dissolve, a subsidiary, or acquire, or enter into any commitment to acquire, an interest in any corporation, association, joint venture, partnership or other business entity or division thereof;
(e) make or agree to make any capital expenditure or commitment exceeding USD $10,000 individually or USD $50,000 in the aggregate other than the capital expenditures set forth in Section 5.2(e) of the Disclosure Schedule;
(f) dispose or agree to dispose of any assets of the Company Company, any assets used in the Business, or any business enterprise or division thereof (including any of right under assets used in the legal or beneficial interest of the Company in any other corporation (if any) outside the ordinary course of the business of the Company and consistent with past practice;
(g) enter into any agreementBusiness, contract or commitment except for (i) the sale, lease, license or transfer sale of any Company Intellectual Property or any agreement contract or commitment or modification or amendment to any agreement with respect to Company Intellectual Property with any Person (other than non-exclusive licenses of the Company Products to end-users pursuant to Standard Form Agreements); (ii) the purchase or license of any Intellectual Property or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property or Intellectual Property Rights of any Person; (iii) any change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights to the Company, or (iv) agree to terminate or permit the loss or lapse (including registrations and applicable) of any Company Intellectual Property, Company Intellectual Property Rights or Intellectual Property Rights);
(h) incur any Indebtedness exceeding USD $10,000 individually or USD $50,000 in the aggregate (other than the obligation to reimburse employees for travel and business expenses or indebtedness incurred in connection with the purchase of goods and services, each in the ordinary course of the Company’s business consistent with past practices), issue or sell any debt securities, create a Lien over any asset of the Company or amend the terms of any outstanding loan agreement;
(i) make any loan or advance to any Person (except for advances to employees for reasonable business travel and expenses inventory items in the ordinary course of business consistent with past practice, (ii) the sale of any assets that are obsolete or which have not been used in the Business during the twelve (12) months preceding the date hereof, and (iii) the transfer of any assets in connection with the Reorganization;
(d) (i) purchase or otherwise acquire in any manner (whether by merger or consolidation, the purchase of an equity interest in or a material portion of the assets of or otherwise) any business or any corporation, partnership, association or other business entity or organization or division thereof; or (ii) make any material capital expenditures;
(e) extend, waive, renew, novate, terminate, amend or otherwise modify any Material Contract (other than extensions and renewals in the ordinary course of business or termination of Material Contracts occurring due to the expiration of the term thereof), or enter into any Contract that would be a Material Contract if entered into as of the date of this Agreement that is not consistent with, or contains terms inconsistent with, prior practices of the Company in the ordinary course of its business;
(f) except in the ordinary course of business and other than with Company Employees or Seller Business Employees who are transferred to the Company pursuant to the Reorganization, enter into any agreement, contract or commitment with any Person for the development of any Intellectual Property;
(g) relinquish any material right, including any right in or to Intellectual Property, or permit any item of Company Registered Intellectual Property to lapse, expire (other than expiration in accordance with an applicable statutory period), be cancelled or otherwise be abandoned or enter into any agreement, contract or commitment for the (i) sale, exclusive license or transfer of any Company Intellectual Property, or (ii) purchase or license of any Intellectual Property, in each case other than non-exclusive licenses entered into in the ordinary course of business;
(h) incur, assume or guarantee any Indebtedness, issue or sell any debt securities, or create or grant any Lien over any material asset (tangible or intangible) of the Company, or used in connection with the Business, or over any of the Company Shares;
(i) make any loan to any Person, purchase debt securities of any Person or amend the terms of any outstanding loan agreement, or amend or guarantee any Indebtedness of any Person, other than such amounts as would constitute Permitted Leakage;
(j) (A) commence commence, comprise or settle any Action or threat of any Action by or against the Company or relating Action, other than to any of their respective businesses, properties or assets; or (B) make any filing or registration with (including the making of any payment or fees in relation thereto), or enter into any settlement, compromise or other similar agreement with, any Governmental Entityenforce its rights under this Agreement;
(k) compromise, settle, dispute in court or waive a right in relation to any employment dispute, including claims or matters raised by any individual, class of employees, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding, claiming or alleging any labor issue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any unlawful employment or labor-related practice, breach or action with respect to the Company;
(l) (A) pay, discharge, release, waive or satisfy any claims, rights or Liabilities, other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected on the Current Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date; or (B) issue or agree to issue any material refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company;
(m) (A) adopt or change accounting principlesmethods, standards, methods practices or practices policies (including any change in depreciation or amortization policies or rates or any change to practices that would impact the methodology for recognizing revenue) other than as required by Singapore FRS; or changes to GAAP arising after the date hereof;
(Bl) except as otherwise required (i) accelerate by any Company Employee Plan existing on or delay prior to the payment date hereof, or (ii) under any applicable Legal Requirement, (A) increase or grant any increase in the compensation, severance, or employee benefits of, or agree to pay, grant or promise any change in the payment terms of, including by offering discountsseverance or bonus to, any accounts payable current or former Company Employee or other Liabilities current officer, director, employee, consultant or accounts receivable (including unbilled accounts receivable), deferred revenue or notes payable, (ii) modify its cash management practices in a manner inconsistent with past practice, or (iii) do anything that would have the effect of cause the working capital position independent contractor of the Company to be inconsistent with historical levels and trends;
(n) make or change any election Seller primarily working in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any agreement in respect of Taxes, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, make or request any Tax ruling, enter into any Tax sharing or similar agreement or arrangement, enter into any transactions giving rise to deferred gain or loss, amend any Tax Return or file any Tax Return including any estimated Tax Return or other material Tax Return that takes any position which is inconsistent connection with the Company’s past practices unless Business (each of whom is identified in Annex B attached hereto) (a copy of such Tax Return has been submitted to Buyer for review a reasonable period of time prior to filing;
(o“Seller Business Employee”) adopt, amend other than any promotion- or terminate, or start a termination process of, any Company Benefit Plan, including any indemnification agreement and any Contract with a labor union or collective bargaining agreement, or enter into or amend any Company Benefit Plan;
(p) hire any Person or terminate any Employee, including any officer of the Company, promote, demote or make any other change to employment status, title, office or position or materially reduce the responsibilities of any Employee;
(q) remove or request the resignation of any member of the Board of Directors of the Company, or agree to do any of the foregoing;
(r) except for the merit-based increases in compensation set forth in Section 5.2(r) the ordinary course of the Disclosure Schedule or as may be required to comply with applicable Lawsbusiness, increase or make any other change that would result in increased cost to the Company to the salary, wage rate, incentive compensation opportunity, employment status, title or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee;
(s) make any declaration, payment, commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) of a severance payment or other change in control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any Employee, except payments made pursuant to written agreements existing on the date hereof and disclosed in Section 5.2(s) of the Disclosure Schedule;
(tB) take any action to accelerate the vesting or payment ofof any compensation or benefits under any Company Employee Plan or Seller Employee Plan, other than with respect to any equity awards granted under a Seller Employee Plan, for the benefit of any Company Employee or Seller Business Employee other than as may apply generally to all other similarly situated participants of any Seller Employee Plan, (C) hire any employee or consultant into the Business (other than to fill an open position or replace a terminating or terminated employee or consultant, in the ordinary course of business) other than in relation to transfers of Seller Business Employees to the Company pursuant to the Reorganization, or otherwise modify (D) terminate any Company Employee or Seller Business Employee, other than for cause and other than in relation to transfers of Seller Business Employees to the terms of any of Company pursuant to the outstanding Company Stock Options or accelerate the vesting or payment of, any other compensation to any EmployeeReorganization;
(um) cancelmake or change any material Tax election, adopt or change any Tax accounting method, amend any income or other material Tax Returns, enter into any closing agreement in respect of Taxes, settle or compromise any Tax claim or assessment, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment;
(other than in connection with n) write-down or write-up the addition value of customers and suppliers to such insurance policies from time to time any asset, except for any assets the value of which may have changed, or may have been changed, as a result of ordinary appreciation or depreciation, as required by GAAP or the Specified Accounting Principles;
(o) except in the ordinary course of business consistent with past practices, (i) modify the cash management activities of the Company or the Business (including the extension of trade credit, the timing of invoicing and collection of receivables and the accrual and payment of payable and other current liabilities), or (ii) modify the manner in which the books and records of the Company or the Business are maintained;
(p) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or the Business, except as may be required to consummate the Transactions in accordance with the Reorganization;
(q) fail to use commercially reasonable efforts to prevent any Company- or Seller-sponsored insurance policy of which the Business is a beneficiary or loss-payable payee to be cancelled or terminated, except for ordinary course terminations and cancellations of such policies or with respect to policies that are being replaced with policies providing for substantially equivalent coverage;
(r) cancel, surrender, allow to expire, or fail to renew (on substantially similar terms) any insurance policy of the Companymaterial Permit;
(vs) send or issue any communications (including electronic communications) to Employees regarding this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby (other than to Employees involved in the negotiation materially change an existing line of this Agreement or the Transaction Documents in course of negotiation of this Agreement or the Transaction Documents) or make any representations to Employees that, in each case, are inconsistent with this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, including any representations regarding offers of employment from Buyer;
(w) (i) terminate, amend, waive, or modify in any material manner relative to such Contract or the business or operations of the Company or any Subsidiary, or violate, the terms of any Contract, (ii) enter into any Contract which would have constituted a Company Contract listed on Schedule 3.10(a) new line of the Disclosure Schedule had such Contract been entered into prior to the date hereof, or (iii) enter into any agreement, arrangement or obligation with any Seller or in which any Seller is interestedbusiness; or
(xt) take, commit, or agree in writing or otherwise to take, any of the actions described in clauses clause (a)-(wa) – (s) of this Section 5.2, or any other action that would (i) prevent the Seller or the Company or any Subsidiary, or any of the Sellers, from performing, or cause causing the Seller or the Company or any Subsidiary, or any Sellers, not to perform, its covenants or agreements hereunder or (ii) cause or result in any of its representations and warranties set forth herein being untrue or incorrectthe actions contemplated to be performed by them under this Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Osprey Technology Acquisition Corp.)
Forbearance of the Company. In furtherance and not in limitation of Section 5.14.1, during the period from the date of this Agreement and continuing until the earlier of the valid termination of this Agreement pursuant to Section 9.1 8.1 or the Closing DateEffective Time, except as permitted or expressly contemplated by this Agreement and Agreement, except as expressly set forth in Section 5.2 4.2 of the Disclosure ScheduleSchedule or to the extent that Parent shall otherwise consent in writing (which consent will not be unreasonably conditioned, withheld or delayed), the Company shall not (and the Sellers shall cause the Company not to):not:
(a) cause or permit any modifications, amendments or changes to its memorandum and articles of association and other constitutive documents of the CompanyCharter Documents;
(b) 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 stockCapital Stock, or split, combine or reclassify any Company capital stock, Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company capital stockCapital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company capital stock Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable thereforfor Company Common Stock), except at their original purchase price from employees or consultants to the Company in accordance connection with the agreements evidencing Vested Company Options outstanding and as in effect on the date hereof; provided, however, that the Company may grant the new options to purchase Ordinary Shares termination of the Company set forth in Section 5.2(b) of the Disclosure Schedule services to the employees and service providers, and in the share amounts, as set forth therein (the “Planned Options”) in accordance with applicable lawCompany;
(c) issue, grant, deliver or sell or authorize or propose or agree to or enter into any agreement or undertaking to undertake any capital reduction, the issuance, grant, delivery or sale of, or purchase or propose the purchase of, or redeem, or repay, any Company capital stock, Capital Stock or equity-based awards (whether payable in cash, stock or otherwise) or any securities or other forms of instruments (howsoever called) convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities, bonus issue or stock split, except for the issuance of Company capital stock Capital Stock pursuant to the exercise of Vested Company Options outstanding as of the date of this Agreement in accordance with their terms as in effect on the date hereof, and the Planned Optionsof this Agreement;
(d) form or dissolveform, or enter into any commitment to form or dissolveform, a subsidiary, or acquire, or enter into any commitment to acquire, an interest in any corporation, association, joint venture, partnership or other business entity or division thereof;
(e) make or agree to make any capital expenditure or commitment exceeding USD $10,000 individually or USD $50,000 in the aggregate other than the capital expenditures set forth in Section 5.2(e) of the Disclosure Scheduleaggregate;
(f) acquire or agree to acquire or dispose or agree to dispose of any assets of the Company or any business enterprise or division thereof (including any of the legal or beneficial interest of the Company in any other corporation (if any) outside the ordinary course of the business of the Company Company, and consistent with past practice;
(g) modify or remove any Company Privacy Policy, or publish or make available any new Company Privacy Policy;
(h) enter into any agreement, contract or commitment for the (i) the sale, lease, license or transfer of any Company Intellectual Property IP or any agreement agreement, contract or commitment or modification or amendment to any agreement with respect to Company Intellectual Property IP with any Person (other than non-exclusive licenses of the Company Products to end-users pursuant to Standard Form Agreements); Person, or (ii) the purchase or license of any -33- Intellectual Property or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property or Intellectual Property Rights of any Person; (iii) any change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights to the Company, or (iv) agree to terminate or permit the loss or lapse (including registrations and applicable) of any Company Intellectual Property, Company Intellectual Property Rights or Intellectual Property Rights);
(hi) propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(j) incur any Indebtedness exceeding USD $10,000 individually or USD $50,000 in the aggregate (other than the obligation to reimburse employees for travel and business expenses or indebtedness incurred in connection with the purchase of goods and services, each in the ordinary course of the Company’s business consistent with past practices), issue or sell any debt securities, create a Lien over any asset of the Company or amend the terms of any outstanding loan agreement;
(ik) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person;
(l) make any loan or advance to any Person (except for accounts receivable incurred in the outside the ordinary course of the business of the Company and advances to employees for reasonable business travel and expenses in the ordinary course of business consistent with past practice), purchase debt securities of any Person or guarantee any Indebtedness of any Person;
(j) (Am) commence or settle any Action or threat of any Action by or against the Company or relating to any of their respective its businesses, properties or assets; or (B) make any filing or registration with (including the making of any payment or fees in relation thereto), or enter into any settlement, compromise or other similar agreement with, any Governmental Entity;
(k) compromise, settle, dispute in court or waive a right in relation to any employment dispute, including claims or matters raised by any individual, class of employees, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding, claiming or alleging any labor issue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any unlawful employment or labor-related practice, breach or action with respect to the Company;
(l) (An) pay, discharge, release, waive or satisfy any claims, rights or Liabilitiesliabilities, other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities liabilities reflected on the Current Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date; or (B) issue or agree to issue any material refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company;
(m) (Ao) adopt or change accounting principles, standards, methods or practices (including any change in depreciation or amortization policies or rates or any change to practices that would impact the methodology for recognizing revenue) other than as required by Singapore FRS; or (B) (i) accelerate or delay the payment of, or agree to any change in the payment terms of, including by offering discounts, any accounts payable or other Liabilities or accounts receivable (including unbilled accounts receivable), deferred revenue or notes payable, (ii) modify its cash management practices in a manner inconsistent with past practice, or (iii) do anything that would have the effect of cause the working capital position of the Company to be inconsistent with historical levels and trendsGAAP;
(np) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any agreement in respect of Taxes, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, make or request any Tax ruling, enter into any Tax sharing or similar agreement or arrangement, enter into any transactions transactions, other than in the ordinary course of business, giving rise to deferred gain or loss, amend any Tax Return or file any Tax Return including any estimated Tax Return or other material Tax Return that takes any position which is inconsistent with the Company’s past practices unless a copy of such Tax Return has been submitted to Buyer Parent for review a reasonable period of time prior to filing;
(oq) other than with respect to the Transaction Bonuses, any other Third Party Expense or any Non-Continuing Employees Severance Amounts in accordance with this Agreement, adopt, amend or terminate, or start a termination process of, any Company Benefit PlanEmployee Plan or any Employee Agreement, including any indemnification agreement and any Contract with a labor union or collective bargaining agreement, or enter into or amend any Company Benefit Plan;
(p) Employee Agreement or otherwise hire or engage any Person or terminate any as an Employee, including any officer of the Company, promote, demote or make any other change to employment status, title, office or position or materially reduce the responsibilities of any Employee;
(q) remove or request the resignation of any member of the Board of Directors of the Company, or agree to do any of the foregoing;
(r) except for other than with respect to the increases Transaction Bonuses, any other Third Party Expense or any Non-Continuing Employees Severance Amounts in compensation set forth in Section 5.2(r) of the Disclosure Schedule or as may be required to comply accordance with applicable Lawsthis Agreement, increase or make any other change that would result in increased cost to the Company to the salary, wage rate, incentive compensation opportunity, employment status, title or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee;
; (s) other than with respect to the Transaction Bonuses, any other Third Party Expense or any Non-Continuing Employees Severance Amounts in accordance with this Agreement, make any declaration, payment, commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) of a severance payment or other change in control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any Employee, except payments made pursuant to written agreements existing on the date hereof of this Agreement and disclosed in Section 5.2(s4.2(s) of the Disclosure Schedule;
(t) take any action to accelerate the vesting or payment of, or otherwise modify the terms of any of the outstanding Company Stock Options or accelerate the vesting or payment of, any other compensation to any Employee;
(u) cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or fail to renew (on substantially similar terms) any insurance policy of the Company;
(v) send or issue any communications (including electronic communications) to Employees regarding this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby (other than to Employees involved in the negotiation of this Agreement or the Transaction Documents in course of negotiation of this Agreement or the Transaction Documents) or make any representations to Employees that, in each case, are inconsistent with this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, including any representations regarding offers of employment from Buyer;
(w) (i) terminate, amend, waive, or modify in any material manner relative to such Contract or the business or operations of the Company or any Subsidiary, or violate, the terms of any Contract, (ii) enter into any Contract which would have constituted a Company Contract listed on Schedule 3.10(a) of the Disclosure Schedule had such Contract been entered into prior to the date hereof, or (iii) enter into any agreement, arrangement or obligation with any Seller or in which any Seller is interested; or
(x) take, commit, or agree in writing or otherwise to take, any of the actions described in clauses (a)-(w) of this Section 5.2, or any other action that would (i) prevent the Company or any Subsidiary, or any of the Sellers, from performing, or cause the Company or any Subsidiary, or any Sellers, not to perform, its covenants or agreements hereunder or (ii) cause or result in any of its representations and warranties set forth herein being untrue or incorrect.
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