No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has: (i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices; (ii) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary; (iii) made any capital expenditure, transaction or commitment exceeding $75,000 individually; (iv) paid, discharged, waived or satisfied, in any amount in excess of $75,000 in any one case, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet; (v) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance); (vi) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries; (vii) adopted or changed their accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAP; (viii) adopted or changed any election in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended or waived the limitation period applicable to any claim or assessment in respect of Taxes; (ix) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case; (x) declared, set aside or paid a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiary, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiary, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or directly or indirectly repurchased, redeemed, or acquired any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options; (xi) other than in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable to any of their respective officers, directors, employees or consultants or (B) declared, paid or committed to pay (whether in cash or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultants; (xii) entered into, amended or terminated any Material Contract to which they are a party other than in the ordinary course of business; (xiii) sold, leased, licensed or otherwise disposed of any of their material assets (whether tangible or intangible) or other material properties, except for agreements with customers entered into in the ordinary course of business; (xiv) created any security interest in any of their assets or properties (whether tangible or intangible); (xv) made any loan to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement; (xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, or issued or sold any debt securities of the Company or any of its Subsidiaries; (xvii) waived or released any material right or material claim, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries; (xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigation; (xix) received any formal written notice of any claim with respect to the ownership, interest or right by any Person other than the Company or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property; (xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing; (xxi) other than Standard Form Agreements entered into in the ordinary course of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property of any Person, (C) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case; (xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case; (xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property; (xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries; (xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter); (xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case; (xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options; (xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business; (xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or (xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Autodesk Inc)
No Changes. Except as set forth in Section 2.10 Since the date of the Disclosure ScheduleCurrent Balance Sheet, there has not been any:
(a) since the Balance Sheet Date, neither the transaction by Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in outside the ordinary course of business as conducted on that date and consistent with past practicespractice;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents articles of incorporation, bylaws, or the organizational documents of any SubsidiaryCompany;
(iiic) made any capital expenditure, transaction expenditure or commitment by Company exceeding $75,000 individually25,000 individually or $50,000 in the aggregate;
(ivd) paidpayment, discharged, waived discharge or satisfiedsatisfaction, in any amount in excess of $75,000 25,000 in any one case, or $50,000 in the aggregate, of any claim, liability, right claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), liability other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of (i) liabilities reflected or reserved against in the Current Balance Sheet, (ii) liabilities incurred after the date thereof in the ordinary course of business, (iii) liabilities incurred in the ordinary course of business and not required to be reflected in the Year-End Financials or Interim Financials in accordance with GAAP, or (iv) liabilities not yet due and payable, or obligations to be performed or satisfied after the date thereof, under any Contract furnished to Parent on or prior to the date hereof;
(ve) suffered any as of the date hereof, destruction of, damage to, or loss of any material assets (whether tangible or intangible)assets, material business or or, to the knowledge of Company, a material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), and as of the Effective Time, any such destruction, damage or loss that would have a Material Adverse Effect on Company;
(vif) been subject to as of the date hereof, any material employment dispute, including claims labor trouble or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect by Company, in any such case to the Company or any of its SubsidiariesCompany;
(viig) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company other than as required by GAAP;
(viiih) adopted or changed except as contemplated hereby, any change in any election in respect of TaxesTaxes (as defined in Section 2.9), adopted any material change in or changed adoption of any accounting method in respect of Taxes, entered into an any material agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written down revaluation by Company of any of its assets other than in the value ordinary course of inventory business, except as may be required by GAAP; THE SYMBOL "[***]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(j) issuance or written off notes sale, or accounts receivable contract to issue or sell, by Company of any shares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except as contemplated hereby or upon exercise of, or otherwise in excess of $75,000 in any one caseaccordance with the agreements evidencing, Company Options;
(xk) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefortherefore), except issuance of Company Common Stock upon exercise of, or distribution of the proceeds of exercise of, or otherwise in accordance with the agreements evidencing evidencing, Company Options, and provided that notwithstanding the foregoing it is understood that Company may declare, set aside or pay cash dividends in respect of any Company Common Stock to the extent that, taking into account any such dividends, the total assets of the Company minus the total liabilities of the Company (the "Net Assets") as of the Closing Date are reasonably expected to equal or exceed $1,000,000 in cash;
(xil) increase in the salary or other than compensation payable or to become payable by Company to any of its officers, directors, or employees, or the declaration, payment or commitment or obligation of any kind for the payment by Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person, except in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable to any of their respective officers, directors, employees or consultants or (B) declared, paid or committed to pay (whether in cash or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultantsas contemplated hereby;
(xiim) entered into, amended or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed of any of their material assets (whether tangible or intangible) or other material properties, except for the granting of non-exclusive licenses relating to the Company's current technology and/or technology development services agreements with customers entered into in the ordinary course of business;
(xiv) created any security interest in any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicespractice or as contemplated hereby, any material agreement, contract, covenant, instrument, lease, license or commitment to which Company is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which Company is a party or by which it or any of its assets are bound;
(n) acquisition of or sale, lease or other disposition of any of the assets or properties of Company, including, but not limited to, the sale of any accounts receivable of Company, or any creation of any security interest in such assets or properties (except as contemplated by subsection (o) below), except as contemplated hereby, outside of the ordinary course of business;
(o) loan, advance or purchased capital contribution by Company to any person or entity, incurring by Company of any material indebtedness, guaranteeing by Company of any material indebtedness, issuance or sale of any debt securities of any Person Company or entered into any amendment to the terms guaranteeing of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claimothers, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigation;
(xix) received any formal written notice of any claim with respect to the ownership, interest or right by any Person other than the Company or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxi) other than Standard Form Agreements entered into in the ordinary course of business (A) soldor as contemplated hereby, leasedprovided that Founder shall loan money to Company, licensed or transferred any in the amount necessary so that Company Intellectual Property or executedwill have $1,000,000 in cash at the Effective Time, modified or amended any agreement in return for a promissory note secured by the assets of the Company and otherwise with respect terms no less favorable to Company Intellectual Property with than that certain promissory note, dated June 29, 2001, of Company to Founder except that the amount owed on such promissory note shall be payable upon the earlier of (x) receipt by Parent or Company of THE SYMBOL "[***]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. amounts paid in respect of Company receivables outstanding as of date hereof or as of the Effective Time (such payment to be made promptly upon any Person or with respect such receipt in an amount equal to the Intellectual Property amount received up to the amount owed on the promissory note) or (y) three months after the Effective Time;
(p) material waiver or release of any Personright or claim of Company, including any write-off or other compromise of any account receivable of Company;
(Bq) purchased commencement, settlement, or licensed notice of any Intellectual Property action, lawsuit, claim or executedproceeding ("Proceeding") against Company, modified or amended any agreement with respect to the Intellectual Property knowledge of Company, any investigation or threat of any Person, Proceeding against Company;
(Cr) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed material change in the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees licensees, or to the knowledge of the Company, in the pricing or royalties set or charged by Persons persons who have licensed Intellectual Property to Company;
(s) agreement or modification to any material agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of Company;
(t) any event or condition of any character, relating to the Company or to the knowledge of the Company, relating to any competitor of its Subsidiariesthe Company, in each case that has had or is reasonably likely to have a Material Adverse Effect on Company;
(Au) – amendment of any term of any outstanding security of Company that would materially increase the obligations of Company under such security;
(D), v) creation or assumption by Company of any Lien on any asset of Company other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
practice (xxiiexcept as contemplated by subsection (o) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letterabove);
(xxviw) executed any strategic alliance, affiliate material delay or joint marketing arrangement postponement in the payment of material accounts payable or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) and other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in material liabilities outside the ordinary course of business;
(xxixx) issued agreement by Company, or agreed to issue any refunds, credits, allowances officer or other concessions with customers with respect to amounts collected by or owed to the employees on behalf of Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (ia) through (xxixw) of this Section 2.10 2.8 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Virage Logic Corp)
No Changes. Except Since December 31, 2013, except as set forth in expressly permitted under, required or specifically consented to by Parent pursuant to Section 2.10 of the Disclosure Schedule4.1 hereof, there has not been, occurred or arisen any:
(a) since the Balance Sheet Date, neither material transaction by the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiaryexcept as expressly contemplated by this Agreement;
(iiic) made any capital expenditurepayment, transaction discharge, waiver or commitment exceeding $75,000 individually;
(iv) paid, discharged, waived or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiariesotherwise), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(vd) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vie) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor disputes or alleging labor trouble, claims of wrongful discharge or any other unlawful employment or labor practice or action with respect to by the Company or any of its SubsidiariesCompany;
(viif) adopted adoption of or changed their change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) other than as required by GAAPthe Company;
(viiig) adopted making of or changed change in any election Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extended or waived the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(ixh) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(x) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOptions or restricted stock awards granted under the Plan;
(xii) other than in (i) termination or extension, or material amendment, waiver or modification of the ordinary course terms, of business (A) increased any Material Contract not required by the salary or other compensation (including equity based compensation) payable to any of their respective officers, directors, employees or consultants terms thereof or (Bii) declaredbreach of or default under any Material Contract or the occurrence of any event or condition which, paid with the giving of notice or committed to pay (whether in cash the passage of time or equity) any severance paymentboth, termination payment, bonus, special remuneration could constitute such a breach or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultantsdefault;
(xiij) entered intosale, amended lease, sublease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other material properties, except for than non-exclusive licenses of the Company Products to end-users pursuant to agreements with customers that have been entered into in the ordinary course of businessbusiness consistent with past practices that do not materially differ in substance from the Standard Form Agreements;
(xivk) created loan by the Company to any security interest in any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness Person, incurring by the Company of any Person (Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees Employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvil) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release or other compromise of any significant account receivable claim of the Company or any of its SubsidiariesCompany;
(xviiim) commenced or settled any lawsuitcommencement, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessessettlement, properties or assets, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation against the Company or its affairs;
(xixn) received any formal written notice of any claim with respect issuance or sale, or Contract or undertaking to the ownershipissue or sell, interest or right by any Person other than the Company or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or subsidiaries of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (Ai) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiariessubsidiaries, or (Bii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(xxio) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than Standard Form Agreements the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement consistent with respect to Company Intellectual Property with any Person or with respect to past practices that do not materially differ in substance from the Intellectual Property of any PersonStandard Form Agreements), (Bii) purchased purchase or licensed exclusive license of any Intellectual Property Rights or executed, modified Technology or amended execution of any agreement with respect to the Intellectual Property Rights or Technology of any PersonPerson (other than Shrink‑Wrap Software), (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third partyparty pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its Subsidiaries, in each case (A) – (D), other than changes in pricing or royalties made in the ordinary course of business and consistent with past practice, not to exceed $75,000 in any one casepractices);
(xxiiq) entered into hiring or termination of any agreement (employee of the Company, promotion, demotion or other than Standard Form Agreements entered into in change to the ordinary course employment status or title of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology office of the Company or resignation or removal of any director of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one caseCompany;
(xxiiir) purchased (i) increase in or sold any interest decrease in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any Leased Real Property kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other real property;
additional salary or compensation (xxivincluding equity based compensation), in each case to any Employees, (iii) acquiredpromise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or agreed to acquire by merging (iv) adoption, termination or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business amendment of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company Company’s standard at‑will offer letter)) or collective bargaining agreement;
(xxvis) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate extend the vesting schedule post‑termination exercise period of any Company Options;
Options or any similar equity awards; (xxviiit) hiredcircumstance, promotedchange, demoted event or terminated or otherwise changed the employment status or title effect of any Employees, other than in the ordinary course of business;
(xxix) issued character that has had or agreed is reasonably likely to issue any refunds, credits, allowances or other concessions with customers have a Material Adverse Effect with respect to amounts collected by or owed to the Company in excess of $75,000Company; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
No Changes. Except as set forth provided in Section 2.10 of the Disclosure Schedule, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to through the date hereofof this Agreement, neither the Company nor any of its Subsidiaries hasthere has not been, occurred or arisen any:
(ia) entered into any transaction by the Company except in the ordinary course of business as conducted on that date and business, consistent with past practices, as conducted on the Balance Sheet Date;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or of the organizational documents of any SubsidiaryCompany;
(iiic) made any capital expenditure, transaction or commitment exceeding $75,000 individuallymaterial decrease in the Company’s annual contract value;
(ivd) paidcapital expenditure or commitment therefor by the Company exceeding $25,000 individually or $100,000 in the aggregate;
(e) payment, discharged, waived discharge or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than (i) payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance SheetSheet or (ii) incurred in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(vf) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vig) been subject to any material employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viih) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAPthe Company;
(viiii) adopted adoption of or changed change in any material Tax (as defined in Section 2.11) election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adopted settlement or changed any accounting method in respect of Taxes, entered into an agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extended extension or waived waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ixj) written material revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xk) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xil) other than increase in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of their respective its officers, directors, employees or employees, consultants or (B) declaredadvisors, paid or committed to pay the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) any by the Company of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation (including equity based compensation), in each case to any such person, other than pursuant to the Company’s written plans and policies in effect as of their respective officers, directors, employees or consultantsthe Balance Sheet Date and listed in Section 2.22(b)(1) of the Disclosure Schedule;
(xiim) entered intoentry into a Material Contract or any termination, amended extension, amendment or terminated modification of the terms of any Material Contract to which they are a party other than in the ordinary course of businessContract;
(xiiin) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or other material properties, except for agreements with customers entered into in properties of the Company outside of the ordinary course of business;
(xiv) created , consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in any of their such assets or properties (whether tangible or intangible)properties;
(xvo) made loan by the Company to any loan to person or guaranteed any indebtedness entity, or purchase by the Company of any Person (debt securities of any person or entity, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices), in an amount not to exceed $10,000 in any one case or purchased any debt securities $25,000 in the aggregate;
(p) incurrence by the Company of any Person or entered into any indebtedness for borrowed money, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or issued or sold sale of any debt securities of the Company or guaranteeing of any debt securities of its Subsidiariesothers, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(xviiq) waived waiver or released release of any material right or material claimclaim of the Company, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its SubsidiariesCompany;
(xviiir) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessescommencement, properties or assetssettlement, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or, to the Knowledge of the Company, other formal investigationinvestigation against the Company or its affairs;
(xixs) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any a Company Subsidiary of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other Personperson’s Intellectual PropertyProperty Rights (as defined in Section 2.14 hereof);
(xxt) except for issuances issuance or sale, or contract or agreement to issue or sell, by the Company of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Common Stock upon the exercise of options issued under the Plans;
(xxiu) other than Standard Form Agreements entered into in the ordinary course (i) sale or license of business (A) sold, leased, licensed or transferred any Company Intellectual Property to, or executedexecution, modified modification or amended amendment of any agreement with respect to any Company Intellectual Property with with, any Person person or with respect to the entity, (ii) purchase or license of any third-party Intellectual Property Rights from, or execution, modification or amendment of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the any third-party Intellectual Property of Rights with, any Personperson or entity, (Ciii) entered into any agreement agreement, or modification or amendment of an existing agreement agreement, with respect to the development of any Content & Technology or Intellectual Property Rights, with a third partyparty (other than custom research projects that involve less than $50,000), or (Div) changed the material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers licensees, or licensees or the in pricing or royalties set or charged by Persons persons who have licensed Content & Technology or Intellectual Property Rights to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one caseCompany;
(xxiiv) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one caseProduct;
(xxiiiw) purchased event or sold condition of any interest in real property, granted any security interest in any real property, entered into character that has had or renewed, amended or modified any is reasonably likely to have a Company Material Adverse Effect;
(x) lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxivas defined in Section 2.13 hereof) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000Company; or
(xxxy) agreed agreement by the Company to do any of the things described in the preceding clauses (ia) through (xxixx) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Gartner Inc)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject except as expressly permitted under, required or specifically consented to any event by Parent pursuant to Section 4.1 or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date Section 4.3 hereof, neither the Company nor any of its Subsidiaries hasthere has not been, occurred or arisen any:
(ia) entered into any transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary;
(iiic) made any capital expenditure, transaction or commitment exceeding $25,000 individually or $75,000 individuallyin the aggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiaries;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 25,000 in any one case, or $75,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(viiih) adopted adoption of or changed change in any election Tax accounting method or material Tax election, closing agreement in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement of any Tax claim or assessment in respect of Taxesassessment, or extended extension or waived waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ixi) written revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiary, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiary, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xik) material increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or employees, consultants or (B) declaredadvisors, paid or committed to pay the declaration, payment or commitment or obligation of any kind for the payment (whether in cash cash, equity or equityother property) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation to any such person;
(including equity based compensationl) any termination or extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), in each case license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective officers, directors, employees or consultantsassets are bound;
(xiim) entered intosale, amended lease, sublease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their material the assets (whether tangible or intangible) or other material propertiesproperties of the Company or any of its Subsidiaries, except for agreements with customers entered into in including the ordinary course sale of business;
(xiv) created any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in any of their such assets or properties (whether tangible or intangible)properties;
(xvn) made material loan by the Company or any loan of its Subsidiaries to any Person, or guaranteed purchase by the Company or any indebtedness of its Subsidiaries of any debt securities of any Person (or amendment to the terms of any outstanding loan agreement, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), ;
(o) incurring by the Company or purchased any debt securities of its Subsidiaries of any Person or entered into any material indebtedness, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company or issued any of its Subsidiaries of any indebtedness, issuance or sold sale of any debt securities of the Company or any of its SubsidiariesSubsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or, to the Knowledge or any reasonable basis for any of the Company, received notice of the threat of any such lawsuit or other formal investigationforegoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xxs) except for issuances issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries, of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxi) other than Standard Form Agreements entered into , except for issuances of Company Capital Stock upon the exercise of Company Options or Company Warrants or the conversion of Company Preferred Stock or the grant of options to purchase Company Common Stock to employees of the Company under the Plan in the ordinary course of business and consistent with past practice;
(At) sold(i) sale, leasedlease, licensed license or transferred transfer of any Company Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any PersonPerson except in the ordinary course of business consistent with past practice, or (Bii) purchased purchase or licensed license of any Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property of any Person, (C) other than non-exclusive, end-user licenses for the Company’s products entered into any in the ordinary course of business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its their respective customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than except in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxiiu) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products products or Technology technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiiiv) purchased event or sold condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) purchase or sale of any interest in real property, granted granting of any security interest in any real property, entered into property or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real propertyproperty by the Company or any of its Subsidiaries;
(xxivx) acquired, acquisition by the Company or agreed any of its Subsidiaries or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired other acquisition or agreed agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or any of its Subsidiaries;
(xxvy) adopted grant by the Company or amended any of its Subsidiaries of any severance, change in control or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule;
(z) adoption, amendment or termination of any Company Employee Plan, execution or executed or amended amendment of any Employee Agreement Agreement, or payment or agreement by the Company or any of its Subsidiaries to pay any bonus or special remuneration to any director or Employee, or increase or modify the salaries, wage rates or other compensation (including any equity-based compensation) of any Employee, other than non-material increases in the execution ordinary course of the Company standard offer letter)business consistent with past practice;
(xxviaa) executed execution of any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess agreement by the Company or any of $75,000 in any one caseits Subsidiaries;
(xxviibb) hiring, promotion, demotion or termination or other than in connection with the transactions contemplated by this Agreement, entered into any action change to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000employees; or
(xxxcc) agreed agreement by the Company or any of its Subsidiaries, or any officer or employees on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (ia) through (xxixbb) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement Agreement, any Related Agreements and any Employment Related Agreements).
Appears in 1 contract
No Changes. Except as set forth in Section 2.10 From the Balance Sheet Date through the date of this Agreement, there has not been, occurred or arisen with respect to the Disclosure Schedule, Company and its Subsidiaries any:
(a) since the Balance Sheet Date, neither event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect;
(b) material transaction or commitment by the Company nor or any of its Subsidiaries has been subject to or relinquishment of any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither material right by the Company nor or any of its Subsidiaries has:
(i) entered into any transaction Subsidiaries, except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(iic) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any SubsidiaryDocuments;
(iiid) made payment, discharge, release, waiver or satisfaction of any capital expenditureclaim or right, transaction or commitment exceeding $75,000 individually;
(iv) paid, discharged, waived or satisfied, Liability in any an amount in excess of $75,000 10,000, in any one case, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of $25,000 in the Company or any of its Subsidiaries)aggregate, other than payments, discharges or satisfactions in the ordinary course of business of liabilities claims and rights or Liabilities properly reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material loss of a customer or supplier of the Company or any of its Subsidiaries (in each case, whether or not covered by insurance);
(vif) been subject to any material employment disputedispute or lawsuits, including including, but not limited to, demands, claims or matters raised by any individual, Governmental EntityAuthority, or any workers’ representative organization, bargaining unit or union, union regarding, claiming or alleging any labor troubleissue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any other unlawful employment or labor practice labor-related practice, breach or action with respect to action, and unlawful wage and hour practices under the Company or any of its SubsidiariesFair Labor Standards Act and applicable state and local laws;
(viig) adopted adoption of or changed their change in the accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates) other than as required by GAAP, or billing and invoicing policies);
(viiih) adopted adoption of or changed change in any election material Tax accounting method, making of or change in any material Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, adopted filing or changed any accounting method in respect of Taxes, entered into an agreement or settlement amending of any Return, surrendering of any right to claim or assessment in respect a refund of Taxes, or extended consent to the waiver or waived extension of the limitation limitations period applicable to for any Tax claim or assessment in respect of Taxesassessment;
(ixi) written down the value (i) declaration, setting aside, or payment of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(x) declared, set aside or paid a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved (iii) any issuance or authorization of any issuance of any other securities in respect of, in lieu of of, or in substitution for shares of of, Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or directly (iv) any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xij) other than in (i) termination or extension, or amendment, waiver or modification of the ordinary course terms, of business any Specified Contract not specifically required by the terms thereof, (Aii) increased breach of or default under any Specified Contract or the salary occurrence of any event or other compensation (including equity based compensation) payable to any condition which, with the giving of their respective officersnotice or the passage of time or both, directors, employees could constitute such a breach or consultants default or (B) declared, paid or committed to pay (whether in cash or equityiii) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case renewal of any Specified Contracts prior to any of their respective officers, directors, employees or consultantsexisting renewal dates;
(xiik) entered intoany issuance or authorization of any issuance of any other securities in respect of, amended in lieu of, or terminated any Material Contract to which they are a party other than in the ordinary course substitution for shares of businessCompany Common Stock;
(xiiil) soldsale, leasedlease, licensed sublease, license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any Lien in such assets or properties other material propertiesthan non-exclusive licenses of, except for or agreements with to provide on a hosted basis, any Company Product to customers pursuant to agreements that have been entered into in the ordinary course of businessbusiness consistent with past practice that do not differ in any material respect from the Standard Form Agreements;
(xivm) created any security interest in loan by the Company or any of their assets its Subsidiaries to any Person, forgiveness by the Company or properties (whether tangible or intangible);
(xv) made any of its Subsidiaries of any loan to any Person, incurring by the Company or guaranteed any indebtedness of its Subsidiaries of any Person (Indebtedness, guaranteeing by the Company or any of its Subsidiaries of any Indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for reasonable advances to employees current Employees not exceeding $2,000 for business travel and other business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreementpractice;
(xvin) incurred any indebtedness for borrowed money (other than under outstanding loan agreements)commencement, amended the terms settlement, written notice or threat of any such outstanding loan agreement, lawsuit or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release proceeding or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against or involving the Company or any of its Subsidiaries relating to or any of their businessesrespective properties, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit business or other formal investigationaffairs;
(xixo) received any formal written claim or notice of any potential claim with respect to the ownership, interest or right of ownership by any Person Person, other than the Company or any of its Subsidiaries in the Subsidiaries, of Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries Property, or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty Rights;
(xxp) except for issuances of issuance or sale, or Contract or undertaking to issue or sell by the Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (Ai) any shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesCommon Stock, or (Bii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxiq) other than Standard Form Agreements entered into in the ordinary course sale, lease or license (or offer to sell, lease or license) of business (A) sold, leased, licensed any Company or transferred any of its Subsidiaries’ Intellectual Property Rights or Company Product or execution of any agreement with respect to any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property Product with any Person or with respect to the Intellectual Property Rights or Technology of any PersonPerson (other than non-exclusive licenses of, or agreements to provide on a hosted basis, any Company Product, to customers pursuant to agreements that have been entered into in the ordinary course of business consistent with past practice that do not differ in any material respect from the Standard Form Agreements), (Bii) purchased purchase or licensed license of any Intellectual Property Rights or executed, modified Technology or amended execution of any agreement with respect to the Intellectual Property Rights or Technology of any PersonPerson (other than licenses for Generally Commercially Available Code), (Ciii) entered into agreement with respect to the development of any Intellectual Property Rights or Technology with a third party, (v) agreement or modification or amendment of an existing agreement with respect regard to the development of any Intellectual Property with a third party, or (Dv) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its Subsidiaries, in each case Subsidiaries (A) – (D), other than changes in pricing or royalties pursuant to agreements in effect as of the date of this Agreement that are made in the ordinary course of business and consistent with past practice, not to exceed $75,000 in any one case);
(xxiir) entered into (i) increase in or decrease in or other change to the salary, wage rates, bonuses, commissions, fees, fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to, or in respect of, any of their respective Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries of a notice payment, severance payment, leave approval or payment, Change in Control Payment, any other termination or employment-related payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case, to any of its Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, collective bargaining agreement, or any Merger bonus plan or any similar plan;
(s) agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to of any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights right of any type or scope with regard to any Company Products Intellectual Property or Technology Company Product;
(t) increase in or alteration to the indemnification obligations of the Company or any of its Subsidiaries to any Employee;
(u) execution, termination or amendment of any Employee Agreement;
(v) the hiring of any individual, termination or resignation of any Employee or contractor, including any officer of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real propertypromotion, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease demotion or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed change to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employeesofficer of the Company or any of its Subsidiaries, other than in or the ordinary course resignation or removal of businessany member of the board of directors of the Company or any of its Subsidiaries;
(xxixw) issued acceleration or agreed delay in the payment of, or agreement to any change in the payment terms of, any accounts payable or other Liabilities or accounts receivable or notes payable, or agreement do anything that would have the effect of cause the Company’s working capital position to differ from historical levels and trends;
(x) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries, or waiver or release of any right or claim of the Company or any of its Subsidiaries;
(y) purchase or sale of any interest in excess real property, granting of $75,000any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(z) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries; or
(xxxaa) agreed agreement or commitment by the Company or any of its Subsidiaries, or any officer or Employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (ia) through (xxix) z), inclusive, of this Section 2.10 3.9 (other than negotiations with Parent and its representatives Representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Except From and including the Balance Sheet Date to and including the date of this Agreement, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice (other than as set forth in Section 2.10 otherwise contemplated hereby with respect to the termination of the Disclosure Scheduleemployees and incurring Transaction Expenses), and there has not been, occurred or arisen any:
(a) since the Balance Sheet Date, neither Material Adverse Effect;
(b) material transaction or commitment by the Company nor or any of its Subsidiaries has been subject to or relinquishment of any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither material right by the Company nor or any of its Subsidiaries has:
(i) entered into any transaction Subsidiaries, except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(iic) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary;
(iiid) made payment, discharge, release, waiver or satisfaction of any capital expenditureclaim or right, transaction or commitment exceeding $75,000 individually;
(iv) paid, discharged, waived or satisfied, Liability in any an amount in excess of $75,000 50,000, in any one case, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of $150,000 in the Company or any of its Subsidiaries)aggregate, other than payments, discharges or satisfactions in the ordinary course of business or in connection with the transactions contemplated by this Agreement of liabilities claims, rights and Liabilities properly reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer or supplier of the Company or any of its Subsidiaries (in each case, whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental EntityAuthority, or any workers’ representative organization, bargaining unit or union, union regarding, claiming or alleging any labor troubleissue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any other unlawful employment or labor practice labor-related practice, breach or action with respect to the Company or any of its Subsidiaries;
(viig) adopted adoption or changed their change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) other than by the Company or any of its Subsidiaries, except as specifically required by GAAP;
(viiih) adopted adoption or changed change in any election Tax accounting method or Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extended or waived the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(ixi) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(xi) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock any Capital Stock of any SubsidiarySubsidiary of the Company, or approved (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock any shares of Capital Stock of any SubsidiarySubsidiary of the Company, or approved (iii) any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock any shares of Capital Stock of any SubsidiarySubsidiary of the Company, or directly (iv) any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock any shares of Capital Stock of any Subsidiary of the Company (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in the case of clauses (iii) and (iv) in accordance with the agreements evidencing Company Options;
(xij) other than in the ordinary course of business (A) increased termination or extension, or material amendment, waiver or modification of the salary or other compensation (including equity based compensation) payable to terms, of any of their respective officersMaterial Contract not specifically required by the terms thereof, directors, employees or consultants or (B) declaredbreach of or default under any Material Contract or the occurrence of any event or condition which, paid with the giving of notice or committed the passage of time or both, would reasonably be expected to pay (whether in cash constitute such a breach or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultantsdefault;
(xiik) entered intosale, amended lease, sublease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any Lien in such material assets or material properties other material properties, except for than (i) Permitted Liens and (ii) non-exclusive licenses of the Company Products to end-users pursuant to agreements with customers that have been entered into in the ordinary course of businessbusiness consistent with past practice that do not materially differ in substance from the Standard Form Agreements;
(xivl) created any security interest in loan by the Company or any of their assets or properties (whether tangible or intangible);
(xv) made its Subsidiaries to any Person, forgiveness by the Company of any loan to any Person, incurring by the Company or guaranteed any indebtedness of its Subsidiaries of any Person (Indebtedness, guaranteeing by the Company or any of its Subsidiaries of any Indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for reasonable advances to employees current Employees not exceeding $2,000 for business travel and other business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreementpractice;
(xvim) incurred any indebtedness for borrowed money (other than under outstanding loan agreements)commencement, amended the terms of any such outstanding loan agreementsettlement, or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, written notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation against or involving the Company or any of its Subsidiaries or its properties, assets, business or affairs;
(xixn) received any formal written notice of any claim with respect to the ownership, interest or right potential claim of ownership by any Person Person, other than the Company or any of its Subsidiaries in the Subsidiaries, of Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty Rights;
(xxo) except for issuances issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries of Company Options issued under the Plan, issued, sold, transferred or granted, (Ai) any shares of Company Capital Stock or any shares of capital stock Capital Stock of any Subsidiary of its Subsidiaries the Company or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any shares of capital stock Capital Stock of any Subsidiary of its Subsidiariesthe Company, or (Bii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxip) other than Standard Form Agreements entered into in the ordinary course (i) sale or license of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified Company Products or amended execution of any agreement with respect to the Company Intellectual Property or Company Products with any Person or with respect to the Intellectual Property Rights or Technology of any PersonPerson (other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practice that do not materially differ in substance from the Standard Form Agreements), (Bii) purchased purchase or licensed license of any Intellectual Property Rights or executed, modified Technology or amended execution of any agreement with respect to the Intellectual Property Rights or Technology of any PersonPerson (other than shrink-wrap, click-through or similar generally available commercial binary code end user licenses), (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third party, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its SubsidiariesSubsidiaries (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practice) or (v) the sale or offer of Company Product at a discount, in each case (A) – (D)case, other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxiiq) entered into (i) increase in or decrease in or other change to the salary, wage rates, bonuses, commissions, fees fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company to, or in respect of, any agreement of its Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a notice payment, severance payment, leave approval or payment, change of control payment, any other termination or employment-related bonus, special remuneration or other additional compensation (including equity based compensation), in each case to any of its, Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, collective bargaining agreement, or the Management Acquisition Bonus Plan or any similar plan;
(r) increase in or alteration to the indemnification obligations of the Company to any Employee;
(s) execution, termination or amendment of any Employee Agreement (other than Standard Form Agreements entered into in execution of the ordinary course Company’s applicable standard offer letter, each of businessthe forms of which have been Made Available to Parent);
(t) any action to accelerate the vesting schedule or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to extend the post-termination exercise period of any Company Products Options or Technology any Company Common Stock or any similar equity awards;
(u) the hiring of any individual or termination of any Employee, including any officer of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course promotion, demotion or other change to employment status or title of business consistent with past practice in an amount not to exceed $75,000 in any one caseofficer of the Company or any of its Subsidiaries, or the resignation or removal of any member of the Board of Directors of the Company or any of its Subsidiaries;
(xxiiiv) purchased waiver or sold release of any material right or material claim of the Company or any of its Subsidiaries;
(w) purchase or sale of any interest in real property, granted granting of any security interest (other than Permitted Liens) in any real property, entered entry into or renewedrenewal, amended amendment or modified modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property;property by the Company; or
(xxivx) acquiredagreement or commitment by the Company or any of its Subsidiaries, or agreed to acquire by merging any officer or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business Employee on behalf of the Company or any of its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (ia) through (xxixw) of this Section 2.10 4.9 (other than negotiations with Parent and its representatives Representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedulecontemplated by this Agreement, since March 31, 2011, there has not been, occurred or arisen any:
(a) since the Balance Sheet Date, neither transaction by the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date the Balance Sheet Date and consistent with past practices, other than the contemplated Company Distributions;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any SubsidiaryDocuments;
(iiic) made any capital expenditure, transaction or commitment with any Person exceeding $75,000 individually100,000 in any case by the Company, except for (i) the contemplated Company Distributions, (ii) obligations arising under any Outbound License Agreement and (iii) payments to outside counsel (and other legal service providers) for legal representation of the Company in connection with the transactions contemplated by this Agreement;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 in any one case, 100,000 of any claim, liabilityLiability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance SheetSheet or made in the ordinary course of business consistent with past practice;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, Entity or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(viiih) adopted adoption of or changed change in any election Tax accounting method or Tax election, entering into any closing agreement in respect of Taxes, adopted settlement or changed any accounting method in respect of Taxes, entered into an agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extended extension or waived waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ixi) written revaluation by the Company of its assets (whether tangible or intangible) and liabilities (including deferred revenue), including writing down the value of inventory or written writing off notes or accounts receivable exceeding $10,000 in excess the aggregate, other than in the ordinary course of $75,000 business consistent with past practice or in any one caseconnection with the preparation of financial statements and audits of the Company by KPMG and PWC;
(xj) declaredother than the contemplated Company Distributions, set any declaration, setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or approved any split, combination or reclassification in respect of any shares of Company Capital Common Stock or the capital stock of any Subsidiary, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOptions and except for any cash-out of Company Options contemplated by this Agreement;
(xik) other than the contemplated Company Distributions, increase in or other change to the ordinary course of business (A) increased the salary salary, wage rates or other compensation (including equity equity-based compensation) payable or to become payable by the Company to any of their respective its officers, directors, employees Employees or consultants Independent Contractors, or (B) declaredthe declaration, paid payment or committed to pay commitment or obligation of any kind for the payment (whether in cash or equity) any by the Company of a severance payment, termination payment, bonuschange in control payment, bonus or other additional salary, special remuneration or other additional or similar salary or compensation (including equity any equity-based compensation), in each case ) to any such person, except payments made to non-officer Employees or to Independent Contractors in the ordinary course of their respective officers, directors, employees business consistent with past practice or consultantsrequired under the terms of any Contract to which the Company is a party;
(xiil) entered intosale, amended lease, license or terminated other disposition of any Material Contract of the material assets (whether tangible or intangible) or properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, except for licenses to which they are a party other than customers in the ordinary course of business;
(xiiim) sold, leased, licensed loan by the Company to any Person (other than routine expense advances to employees or otherwise disposed consultants of any of their material assets (whether tangible or intangible) or other material properties, except for agreements with customers entered into the Company in the ordinary course of business), or purchase by the Company of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(xivn) created any security interest in any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness incurring by the Company of any Person (Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances or reimbursements to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claimclaim of the Company, including any waiver, release or other compromise of any significant account receivable of the Company other than in the ordinary course of business or any of its Subsidiariestotaling $10,000 or less;
(xviiip) commenced commencement or settled settlement of any lawsuit, claim, action, demand, complaint, investigation or other formal proceeding by the Company, the commencement, settlement, notice of or, to the Knowledge of the Company, threat of any unasserted claim, lawsuit, or proceeding or other investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigation;
(xixq) received any formal written notice of any claim with respect to the ownership, or potential claim of (i) an ownership or other interest or right by any Person other than the Third Party in Company or any of its Subsidiaries in the Company Owned Intellectual Property owned by Rights, or developed or created by the Company or any of its Subsidiaries or of (ii) infringement by the Company or any of its Subsidiaries of any other PersonThird Party’s Intellectual PropertyProperty Rights;
(xxr) except for issuances issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company, of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesCommon Stock, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan or the grant of Company Options listed on Section 2.2(c) of the Disclosure Schedule;
(xxis) other than Standard Form Agreements except with respect to non-exclusive license agreements entered into in the ordinary course of business consistent with past practice, (Ai) soldsale, leasedlease, licensed license or transferred transfer of any Company Intellectual Property Rights or executedexecution, modified modification or amended amendment of any agreement with respect to Company Intellectual Property Rights with any Person or with respect to the Technology or Intellectual Property Rights of any PersonPerson except in the ordinary course of business, consistent with past practices, (Bii) purchased purchase or licensed license of any Technology or Intellectual Property Rights or executedexecution, modified modification or amended amendment of any agreement with respect to the Technology or Intellectual Property Rights of any PersonPerson except in the ordinary course of business, (Ciii) entered into any agreement or material modification or material amendment of an existing agreement with respect to the development of any Intellectual Property Technology with a third partyparty except in the ordinary course of business, or (Div) changed the material reduction in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees except as contemplated by an Outbound License Agreement or materially increase the pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one caseexcept as contemplated by an Inbound License Agreement;
(xxiit) entered into any agreement adverse modification (other than Standard Form Agreements entered into in the ordinary course of businessany immaterial modification) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one caseCompany;
(xxiiiu) purchased purchase or sold sale of any interest in real property, granted granting of any security interest in any real property, entered into property or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real propertyproperty by the Company or any amendment, modification, violation or termination hereof;
(xxivv) acquired, acquisition by the Company or agreed agreement by the Company to acquire by merging or consolidating with, or by purchasing any assets (except in the ordinary course of business that are not material to the Company) or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired other acquisition or agreed agreement to acquire any assets (except in the ordinary course of business that are not material to the Company) or any equity securities that are materialthereof, individually or in the aggregate, to the business of the Company otherwise establish or its Subsidiariesacquire any Subsidiary;
(xxvw) adopted (i) adoption, amendment or amended termination of any Company Employee Plan, (ii) execution or executed or amended amendment of any Employee Agreement (other than job offers and agreements for new hires who are below director level seniority consistent with past practice) or any Independent Contractor Agreement (other than with independent contractors or consultants in the execution ordinary course of business as conducted on the Balance Sheet Date and consistent with past practices that will or may result in liabilities of less than $100,000), or (iii) other than the contemplated Company Distributions, declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) by the Company standard offer letter)of a severance payment, termination payment, bonus, special remuneration, other additional salary, fringe benefits (cash, equity or otherwise) or compensation (including equity-based compensation) to any Employee;
(xxvix) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company OptionsOptions or Company Common Stock (other than the acceleration of all vesting of Company Options in connection with the transactions contemplated by this Agreement);
(xxviiiy) hiredhiring, promotedpromotion or demotion, demoted or terminated termination or otherwise changed other change to the employment status or title of any Employees, of the Key Employees or any other than in the ordinary course employees who are of businessdirector level or greater seniority;
(xxixz) issued or agreed to issue alteration of any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to equity interest of the Company in excess of $75,000; orany corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity interest;
(xxxaa) agreed cancellation or material amendment of any insurance policy of the Company;
(bb) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (ia) through (xxixaa) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreements to which the Company is a party); or
(cc) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Rambus Inc)
No Changes. Except Since the date of the Current Balance Sheet, except as expressly permitted under, required or specifically consented to by Buyer pursuant to Section 6.1 hereof, and except as set forth in Section 2.10 4.10 of the Company Disclosure Schedule, and except in connection with this Agreement there has not been, occurred or arisen any:
(a) since the Balance Sheet Date, neither Contract entered into by the Company nor or any of its Subsidiaries has been subject modifications, amendments or changes to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction Contract except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any SubsidiaryDocuments;
(iiic) made any capital expenditure, transaction or commitment exceeding $75,000 individually10,000 individually or $20,000 in the aggregate or any commitment or transaction of the type described in Section 4.13 hereof in any case by the Company;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 10,000 in any one case, or $20,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), or material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by Swedish GAAP;
(viiih) adopted adoption of or changed change in any material election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written material revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declaredthe declaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xik) increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of their respective officers, directors, employees or employees, consultants or (B) declaredadvisors, paid or committed to pay the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) any by the Company of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation (including equity based compensation), in each case to any such person, except for any payments required to be made under the terms of their respective officers, directors, employees any plan or consultantsagreement listed in Section 4.23(b)(1) of the Company Disclosure Schedule and termination payments required by Swedish law;
(xiil) entered into, amended or terminated any Material Contract to which they the Company’s assets (whether tangible or intangible) are a party other than in bound or any termination, extension, amendment or modification of the ordinary course terms of businessany Contract to which the Company’s assets are bound;
(xiiim) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or other material properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any Lien in such assets or properties, except for agreements with the sale, lease, license or other disposition of the Company’s products to customers entered into in the ordinary course of businessbusiness consistent with past practice;
(xivn) created loan by the Company to any security interest Person, or purchase by the Company of any debt securities of any Person or amendment to the terms of any outstanding loan agreement, except for advances to employees for travel and business expenses and extensions of credit to customers, in any each case, in the ordinary course of their assets or properties (whether tangible or intangible)business consistent with past practices;
(xvo) made any loan to or guaranteed any indebtedness incurring by the Company of any Person (indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvip) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, or issued or sold any debt securities of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claimclaim of the Company, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiariesfor which a reserve was not present on the current balance sheet;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessescommencement, properties or assetssettlement, notice or, to the Knowledge of the Company, received notice Shareholders after reasonable inquiry of the Employees, threat of any such lawsuit or proceeding or other formal investigationinvestigation against the Company or relating to its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person Person, other than the Company or any Company, of its Subsidiaries in the Company Intellectual Property (as defined in Section 4.15(a)) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty (as defined in Section 4.15(a));
(xxs) except for issuances issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company, of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesStock, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxit) other than Standard Form Agreements entered into (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any Contract with respect to Company Intellectual Property, except in the ordinary course of business consistent with past practices (Aincluding the sale, lease, or license of the Company’s products to customers), or (ii) sold, leased, licensed purchase or transferred license of any Company Intellectual Property from or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or execution, modification or amendment of any Contract with respect to the Intellectual Property of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement other than the sale of the Company’ products pursuant to its standard end user license and other terms in the ordinary course of business consistent with respect to the Intellectual Property of any Personpast practice, (Ciii) entered into any agreement Contract or modification or amendment of an existing agreement Contract with respect to the development of any Intellectual Property with by the Company for a third partyparty or by a third party for the Company, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than except in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one casepractices;
(xxiiu) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) Contract or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any products or Company Products or Technology of the Company or any of its Subsidiaries, Intellectual Property except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one casepractices;
(xxiiiv) purchased event or sold condition of any character that has had or to the Knowledge of Shareholders, after reasonable inquiry of its Employees, is reasonably likely to have a Company Material Adverse Effect;
(w) purchase or sale of any interest in real property, granted granting of any security interest in any real property, entered into property or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real propertyproperty by the Company;
(xxivx) acquired, acquisition by the Company or agreed agreement by the Company to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired other acquisition or agreed agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its SubsidiariesCompany;
(xxvy) adopted adoption or amended amendment of any Company Employee Plan, execution or executed or amended amendment of any Employee Agreement (other than the execution of the Company standard offer letter)Agreement;
(xxviz) executed execution of any Contract by the Company regarding any strategic alliance, or any affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one casearrangement;
(xxviiaa) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company OptionsCapital Stock;
(xxviiibb) hiredhiring, promotedpromotion, demoted demotion or terminated termination or otherwise changed other change to the employment status or title of any Employeesemployees;
(cc) alteration of any interest of the Company in any corporation, other than association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of any insurance policy of the Company except renewals in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxxee) agreed agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (ia) through (xxixee) of this Section 2.10 4.10 (other than negotiations with Parent Buyer and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither there has not been, occurred or arisen any:
(a) transaction by the Company nor or any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiaryof its Subsidiaries;
(iiic) made any capital expenditure, transaction expenditure or commitment by the Company or any of its Subsidiaries exceeding $75,000 individually10,000 individually or $50,000 in the aggregate;
(ivd) paidpayment, discharged, waived discharge or satisfiedsatisfaction, in any amount in excess of $75,000 5,000 in any one case, or $20,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(viiih) adopted or changed change in any material election in respect of TaxesTaxes (as defined below), adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of TaxesTaxes or a filing of any Return (as defined in Section 2.11(b) hereof);
(ixi) written revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xik) increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or consultants advisors, or (B) declaredthe declaration, paid payment or committed to pay commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation to any such person;
(including equity based compensation)l) agreement, in each case contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective officersassets are bound, directorsother than any agreement, employees contract, covenant, instrument, lease, license or consultants;
(xii) commitment entered into, terminated, extended, amended or terminated any Material Contract to which they are a party other than modified in the ordinary course of businessbusiness where the amount involved does not exceed $5,000;
(xiiim) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or other material properties of the Company or any of its Subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties, except for agreements with customers entered into other than in the ordinary course of businessbusiness where the amount involved does not exceed $5,000;
(xivn) created any security interest in loan by the Company or any of their assets its Subsidiaries to any person or properties (whether tangible entity, or intangible)purchase by the Company or any of its Subsidiaries of any debt securities of any person or entity or amendment to the terms of any outstanding loan agreement;
(xvo) made incurring by the Company or any loan to or guaranteed any indebtedness of its Subsidiaries of any Person (indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvip) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, right or issued or sold any debt securities claim of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company or the Principal Shareholders, threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries relating to or their affairs, or any reasonable basis for any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigationforegoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in of the Company Intellectual Property (as defined in Section 2.14 hereof) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Personperson’s Intellectual PropertyProperty (as defined in Section 2.14 hereof);
(xxs) except for issuances issuance, grant, delivery or sale, or contract or agreement to issue, grant, deliver or sell, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock Capital Stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock Capital Stock of any of its Subsidiaries, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxit) other than Standard Form Agreements entered into in the ordinary course of business where the amount involved does not exceed $5,000, (Ai) soldsale, leasedlease, licensed license or transferred transfer of any Company Intellectual Property (as defined below) or executedexecution, modified modification or amended amendment of any agreement with respect to the Company Intellectual Property with any Person person or entity or with respect to the Intellectual Property of any Personperson or entity, or (Bii) purchased purchase or licensed license of any Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property of any Personperson or entity, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case ;
(Au) – (D), other than in the ordinary course of business consistent with past practice, where the amount involved does not to exceed $75,000 in any one case;
(xxii) entered into any 5,000, agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products products or Technology technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiiiv) purchased event or sold condition of any interest in real property, granted any security interest in any real property, entered into character that has had or renewed, amended or modified any is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined below) by the Company or other real property;any of its Subsidiaries; or
(xxivx) acquiredagreement by the Company or any of its Subsidiaries, or agreed to acquire by merging any officer or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business employees on behalf of the Company or any of its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (ia) through (xxixw) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Epicor Software Corp)
No Changes. Except as set forth in on Section 2.10 4.9 of the Disclosure ScheduleLetter, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries there has been subject to any event not been, occurred or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:arisen any: 18
(ia) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(ii) entered into any modifications, amendments or changes to the Company’s Charter Documents or of the organizational documents of any SubsidiaryCompany other than as contemplated by this Agreement;
(iiib) made any capital expenditure, transaction expenditure or commitment by the Company exceeding $75,000 individually50,000 in the aggregate;
(ivc) paidpayment, discharged, waived discharge or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(vd) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vie) been subject to any material employment dispute, or receipt of written notice of any claim, or written threat of a claim, that the Company has violated any employment Laws, including any such claims or matters raised by any individual, Governmental Entity, Employee or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viif) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAPthe Company;
(viiig) adopted adoption of or changed change in any material Tax election in or any Tax accounting method, entering into any agreement with a Governmental Authority with respect of to Taxes, adopted settlement or changed any accounting method in respect of Taxes, entered into an agreement or settlement compromise of any Tax claim or assessment in respect assessment, extension or waiver of Taxes, or extended or waived the limitation period applicable to any material Tax claim or assessment in respect assessment, or filing of Taxesany amended material Tax Return;
(ixh) written revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one caseAccounts Receivable;
(xi) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xij) other than in hiring or termination of any Employee of the ordinary course Company with a title of business (A) increased Senior Manager or above, request by the salary company that any Employee resign from the Company, promotion, demotion or other compensation (including equity based compensation) payable change to the employment status or title of any Employee of their respective officers, directors, employees the Company with a title of Senior Manager or consultants above or (B) declared, paid resignation or committed to pay (whether in cash or equity) removal of any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation)director of the Company, in each case to any of their respective officerscase, directors, employees or consultants;
(xii) entered into, amended or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiiik) soldincrease in the salary or other compensation (including any bonus or equity based compensation whether payable in cash, leasedsecurities or otherwise) or fringe benefits, licensed payable or otherwise disposed of to become payable by the Company to any of their material assets its officers, directors, employees, consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the ordinary course of business consistent with past practice;
(whether tangible l) adoption of or intangible) entrance into by the Company any Contract for, or other material propertiescommitment by the Company to pay, except for agreements with customers entered into a severance payment or similar termination payment to any of its officers, directors, Employees, consultants, or advisors, other than in the ordinary course of business;
(xivm) created any security interest in sale, lease, license or other disposition of any of their the assets or properties (whether tangible or intangible)) or properties of the Company outside of the ordinary course of business, including the sale of any Accounts Receivable, or any creation of any security interest in such assets or properties;
(xvn) made loan by the Company to any loan to Person, or guaranteed any indebtedness purchase by the Company of any Person (debt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities business;
(o) incurrence by the Company of any Person or entered into any material Indebtedness, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company of any Indebtedness, issuance or issued or sold sale of any debt securities of the Company or guaranteeing of any debt securities of its Subsidiariesothers, except for advances to employees for travel and business expenses in the ordinary course of business;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its SubsidiariesAccounts Receivable;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessescommencement, properties or assetssettlement, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation against the Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person other than the Company in or any of its Subsidiaries in to the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty Rights;
(xxs) except for issuances issuance or sale, or contract or agreement to issue or sell, by the Company of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxii) other than Standard Form Agreements except for agreements with customers entered into in the ordinary course of business (A) soldon the Company’s form of customer agreement, leasedsale, licensed lease, license or transferred transfer to any Person of any Company Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (Bii) purchased except for licenses for Off the Shelf Software entered into in the ordinary course of business, purchase or licensed license of any Intellectual Property Rights or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property Rights of any Person, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one caseCompany;
(xxiiu) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one caseProduct;
(xxiiiv) purchased event or sold condition of any interest in real propertycharacter that has had, granted any security interest in any real propertyor could reasonably be expected to have, entered into or renewed, amended or modified any a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted any alteration, amendment, modification, violation or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule termination of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000Lease Agreements; or
(xxxx) agreed agreement by the Company, or any officer on behalf of the Company, to do any of the things described in the preceding clauses (ia) through (xxixw) of this Section 2.10 4.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Yext, Inc.)
No Changes. Except as set forth in on Section 2.10 3.10 of the Disclosure Schedule, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries there has been subject to any not been, occurred or arisen any:
(a) event or suffered condition of any change character that has had or is would reasonably be expected to have a Company Material Adverse Effect and Effect;
(b) since the Balance Sheet Date but prior to the date hereof, neither material transaction or commitment by the Company nor or relinquishment of any of its Subsidiaries has:
(i) entered into any transaction except in material right by the ordinary course of business as conducted on that date and consistent with past practicesCompany;
(iic) entered into any modificationspayment, amendments discharge, release, waiver or changes to the Company’s Charter Documents or the organizational documents satisfaction of any Subsidiary;
(iii) made any capital expenditureclaim or right, transaction or commitment exceeding $75,000 individually;
(iv) paid, discharged, waived or satisfied, Liability in any an amount in excess of $75,000 50,000, in any one case, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of $150,000 in the Company or any of its Subsidiaries)aggregate, other than payments, discharges or satisfactions in the ordinary course Ordinary Course of business Business of liabilities claims, rights and Liabilities properly reflected or reserved against in the Current Balance Sheet;
(vd) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material loss of a customer or supplier of the Company or any of its Subsidiaries (in each case, whether or not covered by insurance);
(vie) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental EntityAuthority, or any workers’ representative organization, bargaining unit or union, union regarding, claiming or alleging any labor troubleissue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or any other unlawful employment or labor practice labor-related practice, breach or action with respect to the Company or any of its SubsidiariesCompany;
(viif) adopted adoption or changed their change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) other than as required by GAAPthe Company;
(viiig) adopted adoption or changed change in any election Tax accounting method or Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement filing of any amended Tax return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extended or waived the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(ixi) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(x) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryShare Capital, or approved (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryShare Capital, or approved (iii) any issuance of, or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of for, Company Capital Stock Share Capital, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of any Subsidiary, or directly or indirectly repurchased, redeemed, or acquired any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsShare Capital;
(xii) other than in the ordinary course of business (A) increased termination or extension, amendment, waiver or modification of the salary terms, of any Material Contract, or (B) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any Lien in such assets or properties other than non-exclusive licenses of the Company Services to end-users pursuant to agreements that have been entered into in the Ordinary Course of Business;
(k) loan by the Company to any Person, forgiveness by the Company of any loan to any Person, incurring by the Company of any Indebtedness, guaranteeing by the Company of any Indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for reasonable advances to current Employees not exceeding $2,000 for business travel and other business expenses in the Ordinary Course of Business;
(l) commencement, settlement, written notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against or involving the Company or its properties, assets, business or affairs;
(m) written notice of any claim or potential claim of ownership by any Person, other than the Company, of Company Intellectual Property or of infringement by the Company of any other Person’s Intellectual Property Rights;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company of any Company Share Capital;
(o) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, commissions, fees fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company to, or in respect of, any of their respective officersits Employees, directors(ii) declaration, employees payment or consultants commitment or (B) declared, paid or committed to pay obligation of any kind for the payment (whether in cash or equityequity or otherwise) any by the Company of a notice payment, severance payment, leave approval or payment, change of control payment, any other termination or employment-related payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officersits, directorsEmployees, employees (iii) promise to pay any special bonus or consultants;
special remuneration (xiiwhether payable in cash, equity or otherwise) entered intoto any Employee, amended or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiiiiv) soldadoption, leased, licensed termination or otherwise disposed amendment of any of their material assets (whether tangible Company Employee Plan or intangible) or other material properties, except for agreements with customers entered into in the ordinary course of business;
(xiv) created any security interest in any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan collective bargaining agreement;
(xvip) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended increase in or alteration to the terms of any such outstanding loan agreement, or issued or sold any debt securities indemnification obligations of the Company or to any of its SubsidiariesEmployee;
(xviiq) waived or released any material right or material claimexecution, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigation;
(xix) received any formal written notice of any claim with respect to the ownership, interest or right by any Person other than the Company or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxi) other than Standard Form Agreements entered into in the ordinary course of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property of any Person, (C) entered into any agreement or modification termination or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company Company’s applicable standard offer letter, each of the forms of which have been delivered by the Company);
(xxvir) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule hiring of any Company Options;
(xxviii) hiredindividual or termination of any Employee, promotedincluding any officer of the Company, demoted the promotion, demotion or terminated or otherwise changed the other change to employment status or title of any Employeesofficer of the Company, other than in or the ordinary course resignation or removal of businessany member of the Board of Directors of the Company;
(xxixs) issued waiver or agreed to issue release of any refunds, credits, allowances right or other concessions with customers with respect to amounts collected claim of the Company;
(t) any action by or owed to the Company in excess that, if taken from and after the execution of $75,000this Agreement until the Closing, would be prohibited by Section 6.1 or Section 6.2; or
(xxxu) agreed agreement or commitment by the Company, or any Employee on behalf of the Company, to do any of the things described in the preceding clauses (ia) through (xxixt) of this Section 2.10 3.10 (other than negotiations with Parent and its representatives Buyer regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Purchase Agreement (RR Media Ltd.)
No Changes. Except as expressly contemplated by this Agreement, or other than as set forth in Section 2.10 2.11 of the Disclosure Schedule, (a) since the Balance Sheet Date, neither each of the Company nor any of and its Subsidiaries has been subject to any event operated the Business only in the ordinary course and there has not been, occurred or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries hasarisen any:
(ia) entered into any transaction by the Company or its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments amendment or changes change to the Company’s Charter Documents or the organizational documents Subsidiary Charter Documents; EXECUTION VERSION
(c) amendment of any Subsidiaryterm of any outstanding security of the Company or its Subsidiaries;
(iiid) made any capital expenditure, transaction or commitment by the Company or its Subsidiaries exceeding $75,000 individuallyindividually or $75,000 in the aggregate with respect to any single Person;
(ive) paidpayment, dischargeddischarge, waived waiver or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges discharges, waivers or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(vf) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vig) been subject to any material employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ ' representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viih) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaries other than as required by GAAP;
(viiii) adopted or changed change in any material election in respect of TaxesTaxes (as defined in Section 2.13(a) hereof), adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixj) written revaluation by the Company or its Subsidiaries of any of their material assets (whether tangible or intangible), including without limitation, writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xk) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company or its Subsidiaries of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xil) increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiaries to any of their respective its officers, directors, employees or consultants advisors, or (B) declaredthe declaration, paid payment or committed to pay commitment or obligation of any kind for the payment (whether in cash or equity) any by the Company or its Subsidiaries of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation to any such person; EXECUTION VERSION
(including equity based compensation)m) agreement, in each case contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiaries is a party or by which they or any of their respective officersassets (whether tangible or intangible) are bound or any termination, directorsextension, employees amendment or consultants;
(xii) entered intomodification of the terms of any agreement, amended contract, covenant, instrument, lease, license or terminated any Material Contract commitment to which they are the Company or its Subsidiaries is a party or by which they or any of their assets are bound, other than in the ordinary course of business;
(xiiin) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or other material properties of the Company or its Subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or its Subsidiaries, or any creation of any security interest in such assets or properties, except for agreements with customers entered into other than non-exclusive licenses of the Company Products by the Company or its Subsidiaries in the ordinary course of business;
(xivo) created loan by the Company or its Subsidiaries to any security interest in any Person, purchase by the Company or its Subsidiaries of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person Person, or entered into capital contributions to investment in any Person;
(p) creation or other incurrence by the Company or its Subsidiaries of any Lien on any of its asset, except for Liens for Taxes not yet due and payable;
(q) incurring by the Company or its Subsidiaries of any indebtedness, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company or issued its Subsidiaries of any indebtedness, issuance or sold sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of its Subsidiariesothers;
(xviir) waived waiver or released release of any material right or material claimclaim of the Company or its Subsidiaries, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its Subsidiaries, other than in the ordinary course of business;
(xviiis) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, the commencement, settlement, notice or written threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries relating to any of or their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigationaffairs;
(xixt) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company in or any of its Subsidiaries in to the Company Intellectual Property (as defined below) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s 's Intellectual PropertyProperty (as defined below);
(xxu) except for issuances issuance, grant, delivery or sale by the Company of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesStock, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxii) other than Standard Form Agreements entered into in the ordinary course sale or license of business (A) sold, leased, licensed or transferred any Company Intellectual Property owned by the Company or executed, modified or amended execution of any agreement with respect to Company Intellectual Property owned or exclusively licensed by the Company with any Person or with respect to the Intellectual Property of any Person, (Bii) purchased purchase or licensed license of any Intellectual Property or executed, modified or amended execution of any agreement with respect to the Intellectual Property of any Person, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).EXECUTION VERSION
Appears in 1 contract
No Changes. Except as set forth in Section 2.10 of the Disclosure ScheduleSince December 31, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect 2014 and (b) since the Balance Sheet Date but prior to the date hereof, neither except as expressly permitted hereunder, there has not been, occurred or arisen any:
(a) material transaction by the Company nor or any of its Subsidiaries has:
(i) entered into any transaction subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the any organizational documents of any Subsidiaryof its subsidiaries except as expressly contemplated by this Agreement;
(iiic) made any capital expenditurepayment, transaction discharge, waiver or commitment exceeding $75,000 individually;
(iv) paid, discharged, waived or satisfiedsatisfaction, in any amount in excess of $75,000 25,000 individually or $100,000 in any one casethe aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise otherwise) of the Company or of any of its Subsidiaries)subsidiaries, other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(vd) suffered any destruction of, damage to, or loss of any material assets of the Company or any of its subsidiaries (whether tangible or intangible), material business of the Company or any subsidiary of the Company or loss of a material customer of the Company or any of its Subsidiaries subsidiaries (whether or not covered by insurance);
(vie) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor disputes or alleging labor trouble, claims of wrongful discharge or any other unlawful employment or labor practice or action with respect to by the Company or any of its Subsidiariessubsidiaries;
(viif) adopted adoption of or changed their material change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) other than as required by GAAPthe Company or any of its subsidiaries;
(viiig) adopted making of or changed change in any election material Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extended or waived the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(ixh) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(x) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiaryof the Company’s subsidiaries, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiaryof the Company’s subsidiaries, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the any capital stock of any Subsidiarythe Company’s subsidiaries, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company or any of its subsidiaries of any shares of Company Capital Stock or the capital stock of any Subsidiary of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOptions or restricted stock awards granted under the Plan;
(xii) other than in (i) termination or extension, or material amendment, waiver or modification of the ordinary course terms, of business (A) increased any Material Contract by the salary Company or other compensation (including equity based compensation) payable to any of their respective officers, directors, employees or consultants its subsidiaries not required by the terms thereof or (Bii) declared, paid breach of or committed to pay (whether in cash default under any Material Contract by the Company or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officersits subsidiaries or the occurrence of any event or condition which, directorswith the giving of notice or the passage of time or both, employees would reasonably be expected to constitute such a breach or consultantsdefault;
(xiij) entered intosale, amended lease, sublease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their the material assets (whether tangible or intangible) or material properties of the Company or any of its subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or any of its subsidiaries, or any creation of any Lien in such material assets or material properties other material properties, except for than non-exclusive licenses of or agreements with customers entered into to provide (on a hosted basis) Intellectual Property Rights granted by the Company (not including any rights in Company Source Code) in the ordinary course of businessbusiness consistent with past practices;
(xivk) created any security interest in loan by the Company or any of their assets its subsidiaries to any Person, incurring by the Company or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness of its subsidiaries of any Person (Indebtedness for borrowed money, guaranteeing by the Company or any of its subsidiaries of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees Employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvil) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, material right or issued or sold any debt securities claim of the Company or any of its Subsidiariessubsidiaries;
(xviim) waived or released any material right or material claimcommencement, including any waiversettlement, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigation;
(xix) received any formal written notice of any claim with respect to the ownership, interest or right by any Person other than investigation against the Company or its affairs or any of its Subsidiaries subsidiaries and its affairs;
(n) except as set forth in Section 2.2 of the Company Intellectual Property owned by Disclosure Schedule, issuance or developed sale, or created Contract or undertaking to issue or sell, by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
subsidiaries (xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (Ai) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries the Company’s subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any subsidiaries of its Subsidiariesthe Company, or (Bii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxio) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than Standard Form Agreements entered into in the ordinary course Company or any of business (A) sold, leased, licensed its subsidiaries of Company IP or transferred of infringement by the Company or any Company of its subsidiaries of any other Person’s Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, Rights;
(Bp) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property of any Person, (C) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its Subsidiariessubsidiaries (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company or any of its subsidiaries, promotion, demotion or other change to the employment status or title of any officer of the Company or resignation or removal of any director of the Company or any of its subsidiaries;
(r) (i) increase in each case or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (Aincluding equity-based compensation) – payable or to become payable by the Company or any of its subsidiaries to any Employees (D), other than in the ordinary course of business and consistent with past practicepractices), not (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to exceed $75,000 any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any one caseEmployee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement, any employee plan or agreement related to any of its subsidiaries (other than the execution of the Company’s standard at-will offer letter) or collective bargaining agreement;
(xxiis) entered into any agreement (other than Standard Form Agreements entered into in extension of the ordinary course post-termination exercise period of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products Options or Technology any similar equity awards of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one casesubsidiaries;
(xxiiit) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;Material Adverse Effect with respect to the Company and its subsidiaries (taken as a whole); or
(xxivu) acquiredagreement by the Company or any of its subsidiaries, or agreed to acquire by merging any officer or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business employees on behalf of the Company or any of its Subsidiaries;
(xxv) adopted or amended any Company Employee Plansubsidiaries, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (ia) through (xxixt) of this Section 2.10 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
No Changes. Except as set forth in Section 2.10 2.9 of the Company Disclosure ScheduleSchedule or as contemplated by this Agreement or the Related Agreements, (a) since the Balance Sheet Date, neither there has not been, occurred or arisen any:
(a) transaction by the Company nor or any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to any of the Company’s Company Charter Documents or the organizational documents of any SubsidiarySubsidiary Charter Documents;
(iiic) made any capital expenditure, transaction expenditure or commitment by the Company or any of its Subsidiaries exceeding $75,000 individually30,000 individually or $70,000 in the aggregate;
(ivd) paidpayment, discharged, waived discharge or satisfiedsatisfaction, in any amount in excess of $75,000 30,000 individually or $70,000 in any one casethe aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(viiih) adopted adoption of or changed change in any material election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declareddeclaration, set setting aside or paid payment of a dividend on, or other distribution (whether in cash, stock or property) in respect of of, any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect purchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with for repurchases from employees following their termination pursuant to the agreements evidencing Company Optionsterms of their pre-existing stock option or purchase agreements;
(xik) other than increase in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of the Subsidiaries to any of their respective officers, directors, employees or consultants advisors, or (B) declaredthe declaration, paid payment or committed to pay commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation (including equity based compensation), in each case to any such person, except to non-officer level employees in the ordinary course of their respective officers, directors, employees or consultantsbusiness as conducted consistent with past practices;
(xiil) entered intosale, amended lease, license or terminated any Material Contract to which they are a party other disposition (other than in the ordinary course of business;
(xiiibusiness consistent with past practices) sold, leased, licensed or otherwise disposed of any of their material the assets (whether tangible or intangible) or other material propertiesproperties of the Company or any of its Subsidiaries, except for agreements with customers entered into in including, but not limited to, the ordinary course sale of business;
(xiv) created any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in any of their such assets or properties (whether tangible or intangible)properties;
(xvm) made loan by the Company or any loan of its Subsidiaries to any person or guaranteed entity, or purchase by the Company or any indebtedness of its Subsidiaries of any Person debt securities of any person or entity;
(n) incurring by the Company or any of its Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms waiver or release of any such outstanding loan agreement, right or issued or sold any debt securities claim of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviiip) commenced commencement or settled settlement of any lawsuitlawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries relating to or their affairs, or any reasonable basis for any of their businesses, properties or assets, or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or other formal investigationforegoing;
(xixq) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in of the Company Intellectual Property Rights (as defined in Section 2.13 hereof) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Personperson’s Intellectual PropertyProperty (as defined in Section 2.13 hereof);
(xxr) except for issuances issuance or sale, or contract or agreement to issue or sell, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock Capital Stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock Capital Stock of any of its Subsidiaries, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Warrants reflected on Section 2.2(b) of the Company Disclosure Schedule or Company Capital Stock upon the exercise of Company Options issued under the Plan;
(xxis) (i) sale or license of any Company Intellectual Property (other than Standard Form Agreements entered into nonexclusive licenses of products to customers in the ordinary course of business (Aconsistent with past practices) soldor execution, leased, licensed modification or transferred any Company Intellectual Property or executed, modified or amended amendment of any agreement with respect to the Company Intellectual Property Rights with any Person person or entity or with respect to the Intellectual Property or Intellectual Property Rights of any Personperson or entity, (Bii) purchased purchase or licensed license of any Intellectual Property or executedIntellectual Property Rights or execution, modified modification or amended amendment of any agreement with respect to the Intellectual Property or Intellectual Property Rights of any Personperson or entity, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property or Intellectual Property Rights with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).,
Appears in 1 contract
Samples: Merger Agreement (Nanometrics Inc)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Except for specific actions or specific matters expressly contemplated by this Agreement (including the establishment and implementation of the Company Severance Plan, the Parent Severance Plan, the Retention Plan and the Escrow Payment Plan and the payment of severance and other benefits pursuant to Section 5.13 or pursuant to the Change of Control Letter Agreements), between the date of the Current Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereofof this Agreement, neither the Company nor any of its Subsidiaries hasthere has not been, occurred or arisen any:
(i) entered into transaction by the Company or any transaction of its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(ii) entered into any modifications, amendments or changes to the Company’s Charter Documents certificate of incorporation, bylaws or other organizational documents, as the organizational documents case may be, of the Company or any Subsidiaryof its Subsidiaries;
(iii) made changes in the Company’s or any of its Subsidiaries authorized capital expenditure, transaction or commitment exceeding $75,000 individuallystructure;
(iv) paidcapital expenditures or capital commitments by the Company or any of its Subsidiaries, dischargedeither individually exceeding $50,000 or, waived with respect to the Company and its Subsidiaries as a whole, in the aggregate exceeding $100,000;
(v) payment, discharge or satisfiedsatisfaction, in any amount in excess of $75,000 15,000 in any one case, or, with respect to the Company and its Subsidiaries as a whole, $25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiariesotherwise), other than paymentspayment, discharges discharge or satisfactions in the ordinary course of business satisfaction of liabilities reflected or reserved against in the Current Balance Sheet;
(vvi) suffered revaluation by the Company or any destruction of, damage to, or loss of its Subsidiaries of any material of their respective assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vi) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(vii) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by the Company or any of its Subsidiaries, except pursuant to a change in GAAP;
(viii) adopted change in any material election by the Company or changed any election of its Subsidiaries with respect to Taxes (as defined below), adoption or change in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement by the Company and its Subsidiaries of any claim or assessment in respect of Taxes, or extended extension or waived waiver by the Company and its Subsidiaries of the limitation period applicable to any claim or assessment in respect of Taxes;
(ix) written down the value of inventory or written off notes or accounts receivable in excess of $75,000 in any one case;
(x) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in with respect of any to the Company Capital Stock or the capital stock of any SubsidiarySubsidiary Ownership Interest, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiarySubsidiary Ownership Interest, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or Subsidiary Ownership Interest, or any direct or indirect redemption, repurchase or other acquisition by the capital stock Company of any Subsidiary, or directly or indirectly repurchased, redeemed, or acquired any shares of Company Capital Stock or the capital stock by any of its Subsidiaries of any Subsidiary Ownership Interest (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOption Plans;
(x) increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its officers, directors, employees or advisors or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or any of its Subsidiaries, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(xi) termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets is bound other than in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable to any of their respective officers, directors, employees or consultants or (B) declared, paid or committed to pay (whether in cash or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultantsconsistent with past practices;
(xii) entered intosale, amended lease, license or terminated other disposition of any Material Contract to which they are a party other than in of the ordinary course material tangible assets or material tangible properties of businessthe Company or any of its Subsidiaries;
(xiii) soldloan by the Company or any of its Subsidiaries to or capital investment in any Person, leased, licensed incurring by the Company or otherwise disposed any of its Subsidiaries of any of their material assets (whether tangible indebtedness for borrowed money, guaranteeing by the Company or intangible) or other material properties, except for agreements with customers entered into in the ordinary course of business;
(xiv) created any security interest in any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed its Subsidiaries of any indebtedness for borrowed money, issuance or sale of any Person (debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvixiv) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms knowing waiver or release of any such outstanding loan agreement, right or issued or sold any debt securities claim of the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claim, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its Subsidiaries, in excess of $25,000 in any one case or $100,000 in the aggregate;
(xviiixv) commenced commencement or settled settlement of any lawsuit, or other formal investigation against lawsuit by the Company or any of its Subsidiaries relating to any of their businessesor commencement, properties or assetssettlement, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation involving the Company;
(xixxvi) received any formal written notice (i) sale or license of any claim with respect to the ownership, interest Company Technology or right by any Person other than the Company or any execution of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxi) other than Standard Form Agreements entered into in the ordinary course of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property Company Technology with any person or entity or with respect to the Technology of any Person, (Cii) entered into purchase or license of any Technology or execution of any agreement or modification or amendment with respect to the Technology of an existing any Person, (iii) agreement with respect to the development of any Intellectual Property Technology with a third party, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Technology to the Company or any its Subsidiaries; or
(xvii) any agreement by the Company, any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in or any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) officer or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology employee on behalf of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed Subsidiaries to do any of the things described in the preceding clauses (ia)(i) through (xxixa)(xvi).
(b) Except as set forth in Section 2.9(b) of this Section 2.10 the Disclosure Schedule, there has not been, occurred or arisen since the date of the Current Balance Sheet:
(i) any destruction of, damage to or loss of any material assets (whether tangible or intangible) (whether or not covered by insurance), of the Company or any of its Subsidiaries in excess of $50,000 in the aggregate;
(ii) to the Company’s Knowledge, any loss of any material business, customer or partner;
(iii) to the Company’s Knowledge, any claim of wrongful discharge or other than negotiations with Parent and unlawful labor practice or action asserted against the Company or any of its representatives regarding Subsidiaries; or
(iv) any event or condition that has had or would be reasonably expected to have a Material Adverse Effect on the transactions contemplated by this Agreement and any Related Agreements)Company.
Appears in 1 contract
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedulecontemplated by this Agreement, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since from the Balance Sheet Date but prior to through the date hereof, neither the Company nor any of and its Subsidiaries hashave operated their business only in the Ordinary Course and there has not been, occurred or arisen any:
(ia) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(ii) entered into any modifications, amendments amendment or changes change to the Company’s Charter Documents or the organizational documents of any SubsidiarySubsidiary Charter Documents;
(iiib) made amendment of any capital expenditureterm of any outstanding security of the Company or its Subsidiaries, transaction or commitment exceeding $75,000 individuallyother than amendments of vesting periods of the Accelerated Company Vested Options in contemplation of this Agreement and the transactions contemplated hereby;
(ivc) paidexpenditure or transaction with a monetary commitment by the Company or its Subsidiaries exceeding $100,000 individually or $500,000 in the aggregate with respect to any single Person;
(d) settlement, dischargeddischarge, waived waiver, release or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries)) exceeding $100,000 individually or $500,000 in the aggregate with respect to any single Person, other than paymentsany such settlement, discharges discharge, waiver, release or satisfactions satisfaction entered into in the ordinary course of business of liabilities reflected or reserved against Ordinary Course on terms that were consistent in the Current Balance Sheetall material respects with previously existing Contract provisions;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any its Subsidiaries, resulting in a loss of its Subsidiaries more than $75,000 (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaries other than as required by GAAP;
(viiih) adopted or changed change in any material election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of TaxesTaxes by the Company or any of its Subsidiaries;
(ixi) written revaluation by the Company or its Subsidiaries of any asset (whether tangible or intangible), including writing down the value of inventory or written writing off notes a note or an accounts receivable receivable, in excess of an amount exceeding $75,000 in any one case75,000;
(xj) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company or its Subsidiaries of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xik) other than material increase in the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiaries to any officer, director or employee, or the declaration, payment, commitment or obligation of their respective officers, directors, employees or consultants or (B) declared, paid or committed to pay any kind for the payment (whether in cash or equity) any by the Company or its Subsidiaries of a severance payment, termination paymentpayment or special bonus to any such officer, bonusdirector or employee;
(l) entry into (or termination, special remuneration extension, amendment or other additional modification of the terms of) any Contract to which the Company or similar salary its Subsidiaries is a party or compensation (including equity based compensation), in each case to by which they or any of their respective officersassets (whether tangible or intangible) are bound, directors, employees or consultantsother than Contracts entered into in the Ordinary Course;
(xiim) entered intosale, amended lease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their material the assets (whether tangible or intangible) or other material propertiesproperties of the Company or its Subsidiaries, except for agreements with customers entered into in including the ordinary course sale of business;
(xiv) created any accounts receivable of the Company or its Subsidiaries, or any creation of any security interest in any of their such assets or properties (whether tangible properties, other than any such disposition made in the Ordinary Course or intangible)involving receipt of less than $100,000;
(xvn) made loan by the Company or its Subsidiaries to any loan to Person, purchase by the Company or guaranteed any indebtedness its Subsidiaries of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities of any Person Person, or entered into capital contributions to investment in any Person;
(o) creation or other incurrence by the Company or its Subsidiaries of any Lien on any of their assets;
(p) incurring by the Company or any of its Subsidiaries of any indebtedness for borrowed money, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company or issued its Subsidiaries of any such indebtedness, issuance or sold sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of its Subsidiariesothers;
(xviiq) waived commencement or released any material right or material claim, including any waiver, release or other compromise settlement of any significant account receivable of lawsuit by the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessescommencement, properties or assetssettlement, written notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation against the Company or its Subsidiaries or their affairs;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person other than the Company or any of its Subsidiaries in or to the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
; (xxs) except for issuances issuance, grant, delivery or sale by the Company of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesStock, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, other than shares of Company Common Stock issued upon exercise of options outstanding as of the Balance Sheet Date;
(xxii) sale or license of any Intellectual Property owned by the Company or its Subsidiaries or execution of any Contract with respect to Intellectual Property owned or exclusively licensed by the Company or its Subsidiaries with any Person, other than Standard Form Agreements any such sale or license entered into in the ordinary course Ordinary Course, (ii) purchase or license of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended execution of any agreement with respect to Company Intellectual Property with any Person or Contract with respect to the Intellectual Property of any Person, (B) purchased other than in connection with a purchase or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property license of any Person“off-the-shelf” software, (Ciii) entered into any agreement or modification or amendment of an existing agreement Contract with respect to the development of any Intellectual Property with a third party, or (Div) changed the material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees licensees, or the (v) material change in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither there has not been, occurred or arisen any:
(a) material transaction by the Company nor or any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary;
(iiic) made any capital expenditure, transaction or commitment exceeding $75,000 individually20,000 individually or $50,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiaries;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 20,000 in any one case, or $50,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAPthe Company or any of its Subsidiaries;
(viiih) adopted adoption of or changed change in any election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declaredexcept as set forth in Section 2.10(j) of the Disclosure Schedule, set any declaration, setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiary, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiary, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOptions or Company Common Stock subject to vesting;
(xik) except as expressly provided for in this Agreement, including without limitation, the Company’s obligation to pay deferred compensation as provided for in Section 1.6(b)(i)(i) of this Agreement, increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or employees, consultants or (B) declaredadvisors, paid or committed to pay the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation to any such person;
(including equity based compensation)l) material agreement, in each case contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective officers, directors, employees or consultantsassets are bound;
(xiim) entered intosale, amended lease, license or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, leased, licensed or otherwise disposed disposition of any of their material the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties other material properties, except for agreements with customers entered into than in the ordinary course of businessbusiness consistent with past practices;
(xivn) created any security interest in loan by the Company or any of their assets or properties (whether tangible or intangible);
(xv) made any loan its Subsidiaries to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased purchase by the Company or any of its Subsidiaries of any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred incurring by the Company or any indebtedness for borrowed money (other than under outstanding loan agreements)of its Subsidiaries of any indebtedness, amended amendment of the terms of any such outstanding loan agreement, guaranteeing by the Company or issued any of its Subsidiaries of any indebtedness, issuance or sold sale of any debt securities of the Company or any of its SubsidiariesSubsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviiiq) commenced (i) commencement or settled settlement of any lawsuitlawsuit by the Company or any of its Subsidiaries, or (ii) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries or relating to any of their businesses, properties or assets, or, or to the Knowledge of the Company, received notice any reasonable basis for any of the threat of any such lawsuit or other formal investigationforegoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
; (xxs) except for issuances issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries, of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
, except for (xxii) other than Standard Form Agreements entered into in issuances of Company Capital Stock upon the ordinary course exercise of business Company Options or (Aii) soldprior to the date hereof, leasedthe grant of restricted Company Common Stock or options to purchase Company Common Stock to employees of the Company under the Plan; (t) (i) sale, licensed lease, license or transferred transfer of any Company Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any PersonPerson except in the ordinary course of business consistent with past practice, or (Bii) purchased purchase or licensed license of any Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property of any Person, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third partyparty (other than entering into Employee Proprietary Information Agreements with new employees), or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been subject except as expressly permitted under, required or specifically consented to any event or suffered any change that has had or is reasonably expected by Parent pursuant to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date Article V hereof, neither the Company nor any of its Subsidiaries hasthere has not been, occurred or arisen any:
(ia) entered into any transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any SubsidiaryDocuments;
(iiic) made any capital expenditure, transaction or commitment exceeding $75,000 individually25,000 individually or $100,000 in the aggregate or any commitment or transaction of the type described in Section 3.16(a) hereof in any case by the Company;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 25,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(viiih) adopted adoption of or changed change in any election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one casereceivable;
(xj) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsCompany;
(xii) increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of their its respective officers, directors, employees or consultants consultants, or (Bii) declareddeclaration, paid payment or committed to pay commitment or obligation of any kind for the payment (whether in cash or equity) any by the Company of a severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their its respective officers, directors, employees or consultants;
(xiil) entered intoContract, amended covenant, instrument, lease, license or terminated any Material Contract commitment to which they are the Company is a party other than in or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the ordinary course terms of businessany Contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of their assets are bound;
(xiiim) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or other material propertiesproperties of the Company, except for agreements with customers entered into in including the ordinary course sale of business;
(xiv) created any accounts receivable of the Company, or any creation of any security interest in any of their such assets or properties (whether tangible or intangible)properties;
(xvn) made any loan by the Company to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased purchase by the Company of any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred incurring by the Company of any indebtedness for borrowed money (other than under outstanding loan agreements)indebtedness, amended amendment of the terms of any such outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or issued or sold sale of any debt securities of the Company or guaranteeing of any debt securities of its Subsidiariesothers, except for obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company, including any waiver, release or other compromise of any significant account receivable of the Company or any of its SubsidiariesCompany;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, the commencement, settlement, notice or, to the knowledge of the Company, threat of any lawsuit or proceeding or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, or, to the Knowledge or any reasonable basis for any of the Company, received notice of the threat of any such lawsuit or other formal investigationforegoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(xxs) except for issuances issuance, grant, delivery, sale or purchase of, or proposal, Contract or agreement to issue, grant, deliver, sell or purchase, by the Company, of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (Ai) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its SubsidiariesStock, or (Bii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plan;
(xxit) other than Standard Form Agreements entered into in the ordinary course (i) sale, lease, license or transfer of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, or (Bii) purchased purchase or licensed license of any Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property of any Person, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (Div) changed the change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one caseCompany;
(xxiiu) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one caseCompany;
(xxiiiv) purchased a Company Material Adverse Effect;
(w) purchase or sold sale of any interest in real property, granted granting of any security interest in any real property, entered entry into or renewedrenewal, amended amendment or modified modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real propertyproperty by the Company;
(xxivx) acquiredacquisition by the Company of, or agreed agreement by the Company to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired other acquisition or agreed agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its SubsidiariesCompany;
(xxvy) adopted grant by the Company of any severance or amended termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule;
(z) adoption or amendment of any Company Employee Plan, or executed execution or amended amendment of any Employee Agreement (other than the execution of the Company standard at-will offer letter);
(xxviaa) executed execution of any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one caseagreement by the Company;
(xxviibb) hiring, promotion, demotion or termination or other than in connection with the transactions contemplated by this Agreement, entered into any action change to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of businessemployees;
(xxixcc) issued alteration of any interest of the Company in a Subsidiary or agreed any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of any insurance policy of the Company;
(ee) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,00025,000 individually or $100,000 in the aggregate; or
(xxxff) agreed agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (ia) through (xxixee) of this Section 2.10 3.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Supergen Inc)
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof, there has not been, occurred or arisen any:
(a) material transaction by the Company nor or any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(iib) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary;
(iiic) made any capital expenditure, transaction or commitment exceeding $75,000 individually25,000 individually or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiaries;
(ivd) paidpayment, dischargeddischarge, waived waiver or satisfiedsatisfaction, in any amount in excess of $75,000 25,000 in any one case, or $250,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ve) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance)Deleted;
(vif) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(viig) adopted adoption or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(viiih) adopted adoption of or changed change in any election in respect of Taxes, adopted adoption or changed change in any accounting method in respect of Taxes, entered into an agreement or settlement of any claim or assessment in respect of Taxes, or extended extension or waived waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ixi) written revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), except for the writing off or down of the value of inventory or written writing off of notes or accounts receivable receivable, fixed assets and investments in excess of $75,000 in any one caseSubsidiaries;
(xj) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiary, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiary, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company OptionsOptions or Company Unvested Shares or the Related Agreements;
(xik) except as expressly provided for in this Agreement, an increase in or other than in the ordinary course of business (A) increased change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or employees, consultants or (B) declaredadvisors, paid or committed to pay the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus, special remuneration bonus or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultantssuch person;
(xiil) entered intoMaterial Contract to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, amended extension, amendment or terminated modification of the terms of any Material Contract to which they are the Company or any of its Subsidiaries is a party other than in the ordinary course or by which it or any of businesstheir assets are bound;
(xiiim) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their material the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties other material properties, except for agreements with customers entered into than in the ordinary course of businessbusiness consistent with past practices;
(xivn) created any security interest in loan by the Company or any of their assets or properties (whether tangible or intangible);
(xv) made any loan its Subsidiaries to or guaranteed any indebtedness of any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased purchase by the Company or any of its Subsidiaries of any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred incurring by the Company or any indebtedness for borrowed money (other than under outstanding loan agreements)of its Subsidiaries of any indebtedness, amended amendment of the terms of any such outstanding loan agreement, guaranteeing by the Company or issued any of its Subsidiaries of any indebtedness, issuance or sold sale of any debt securities of the Company or any of its SubsidiariesSubsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any significant account receivable of the VoD Business;
(q) (i) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or (ii) commencement, settlement, notice or, to the Knowledge of the Company or any of its Subsidiaries;
(xviii) commenced , threat of any lawsuit or settled any lawsuit, proceeding or other formal investigation against the Company or any of its Subsidiaries or relating to any of their businesses, properties or assets, or, or to the Knowledge of the CompanyCompany or any of its Subsidiaries, received notice any reasonable basis for any of the threat of any such lawsuit or other formal investigationforegoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiaries in of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
; (xxs) except for issuances issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of Company Capital Stock upon the exercise its Subsidiaries, of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
, except for (xxii) other than Standard Form Agreements entered into in issuances of Company Capital Stock upon the ordinary course exercise of business Company Options or the conversion of Company Preferred Stock or (Aii) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect prior to the Intellectual Property date hereof, the grant of any Person, (B) purchased restricted Company Common Stock or licensed any Intellectual Property or executed, modified or amended any agreement with respect options to the Intellectual Property of any Person, (C) entered into any agreement or modification or amendment of an existing agreement with respect purchase Company Common Stock to the development of any Intellectual Property with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology employees of the Company or any of its Subsidiaries, except for those Contracts entered in under the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one casePlan;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
No Changes. Except as set forth in on Section 2.10 4.9 of the Disclosure ScheduleLetter, (a) since the Balance Sheet Date, neither the Company nor any of its Subsidiaries there has been subject to any event not been, occurred or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries hasarisen any:
(ia) entered into any transaction except in the ordinary course of business as conducted on that date and consistent with past practices;
(ii) entered into any modifications, amendments or changes to the Company’s Charter Documents or of the organizational documents of any SubsidiaryCompany other than as contemplated by this Agreement;
(iiib) made any capital expenditure, transaction expenditure or commitment by the Company exceeding $75,000 individually50,000 in the aggregate;
(ivc) paidpayment, discharged, waived discharge or satisfied, in any amount in excess satisfaction of $75,000 in any one case, any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(vd) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(vie) been subject to any material employment dispute, or receipt of written notice of any claim, or written threat of a claim, that the Company has violated any employment Laws, including any such claims or matters raised by any individual, Governmental Entity, Employee or any workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viif) adopted or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAPthe Company;
(viiig) adopted adoption of or changed change in any material Tax election in or any Tax accounting method, entering into any agreement with a Governmental Authority with respect of to Taxes, adopted settlement or changed any accounting method in respect of Taxes, entered into an agreement or settlement compromise of any Tax claim or assessment in respect assessment, extension or waiver of Taxes, or extended or waived the limitation period applicable to any material Tax claim or assessment in respect assessment, or filing of Taxesany amended material Tax Return;
(ixh) written revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable in excess of $75,000 in any one caseAccounts Receivable;
(xi) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or approved any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any SubsidiaryStock, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(xij) other than in hiring or termination of any Employee of the ordinary course Company with a title of business (A) increased Senior Manager or above, request by the salary company that any Employee resign from the Company, promotion, demotion or other compensation (including equity based compensation) payable change to the employment status or title of any Employee of their respective officers, directors, employees the Company with a title of Senior Manager or consultants above or (B) declared, paid resignation or committed to pay (whether in cash or equity) removal of any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation)director of the Company, in each case to any of their respective officerscase, directors, employees or consultants;
(xii) entered into, amended or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiiik) soldincrease in the salary or other compensation (including any bonus or equity based compensation whether payable in cash, leasedsecurities or otherwise) or fringe benefits, licensed payable or otherwise disposed of to become payable by the Company to any of their material assets its officers, directors, employees, consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the ordinary course of business consistent with past practice;
(whether tangible l) adoption of or intangible) entrance into by the Company any Contract for, or other material propertiescommitment by the Company to pay, except for agreements with customers entered into a severance payment or similar termination payment to any of its officers, directors, Employees, consultants, or advisors, other than in the ordinary course of business;
(xivm) created any security interest in sale, lease, license or other disposition of any of their the assets or properties (whether tangible or intangible)) or properties of the Company outside of the ordinary course of business, including the sale of any Accounts Receivable, or any creation of any security interest in such assets or properties;
(xvn) made loan by the Company to any loan to Person, or guaranteed any indebtedness purchase by the Company of any Person (debt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchased any debt securities business;
(o) incurrence by the Company of any Person or entered into any material Indebtedness, amendment to of the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company of any Indebtedness, issuance or issued or sold sale of any debt securities of the Company or guaranteeing of any debt securities of its Subsidiariesothers, except for advances to employees for travel and business expenses in the ordinary course of business;
(xviip) waived waiver or released release of any material right or material claimclaim of the Company, including any waiver, release write-off or other compromise of any significant account receivable of the Company or any of its SubsidiariesAccounts Receivable;
(xviiiq) commenced commencement or settled settlement of any lawsuitlawsuit by the Company, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businessescommencement, properties or assetssettlement, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other formal investigationinvestigation against the Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(xixr) received any formal written notice of any claim with respect to the or potential claim of ownership, interest or right by any Person other than the Company in or any of its Subsidiaries in to the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty Rights;
(xxs) except for issuances issuance or sale, or contract or agreement to issue or sell, by the Company of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(xxii) other than Standard Form Agreements except for agreements with customers entered into in the ordinary course of business (A) soldon the Company’s form of customer agreement, leasedsale, licensed lease, license or transferred transfer to any Person of any Company Intellectual Property or executedexecution, modified modification or amended amendment of any agreement with respect to the Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (Bii) purchased except for licenses for Off the Shelf Software entered into in the ordinary course of business, purchase or licensed license of any Intellectual Property Rights or executedexecution, modified modification or amended amendment of any agreement with respect to the Intellectual Property Rights of any Person, (Ciii) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement
No Changes. Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since Since the Balance Sheet Date, neither except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto, the business of the Company nor any of its Subsidiaries has been subject to any event or suffered any change that has had or is reasonably expected to have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to the date hereof, neither the Company nor any of its Subsidiaries has:
(i) entered into any transaction except conducted in the ordinary course of business as conducted on that date and business, consistent with past practices;practice and there has not occurred or arisen any:
(iia) entered into any modifications, amendments or changes to the Company’s Charter Documents of the Company or the organizational documents any of any Subsidiaryits subsidiaries other than as contemplated by this Agreement;
(iiib) made any capital expenditure, transaction expenditure or commitment by the Company exceeding $75,000 individually50,000 individually or $200,000 in the aggregate;
(ivc) paidpayment, dischargeddischarge or satisfaction of any individual claim, waived liability or satisfied, in any amount obligation in excess of $75,000 in any one case, any claim, liability, right or obligation 50,000 (absolute, accrued, asserted or unasserted, contingent or otherwise otherwise) of the Company or any of its Subsidiaries)Company, other than payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(vd) suffered any destruction of, material damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any of its Subsidiaries subsidiaries (whether or not covered by insurance);
(vie) been subject to any material employment labor dispute, including claims or matters raised by any individual, Governmental Entity, individuals or workers’ representative organization, bargaining unit or union, regarding, claiming union regarding labor trouble or alleging labor trouble, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(viif) adopted adoption of or changed their change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(viiig) adopted adoption of or changed change in any Tax election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adopted settlement or changed any accounting method in respect of Taxes, entered into an agreement or settlement compromise of any Tax claim or assessment in respect assessment, extension or waiver of Taxes, or extended or waived the limitation period applicable to any material Tax claim or assessment in respect or filing of Taxesany amended Tax Return;
(ixh) written revaluation by the Company or any of its subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or written writing off notes or accounts receivable Accounts Receivable (other than depreciation or amortization of any asset in excess the ordinary course of $75,000 in any one casebusiness consistent with past practices);
(xi) declareddeclaration, set setting aside or paid payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock Stock, or the capital stock or other equity 105132706 v11 interests of any Subsidiaryof the Company’s subsidiaries, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock or other equity interests of any Subsidiaryof the Company’s subsidiaries, or approved any issuance issuance, granting or authorization of any issuance or granting of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock or other equity interests of any Subsidiaryof the Company’s subsidiaries, or directly any direct or indirectly repurchasedindirect repurchase, redeemedredemption, or acquired other acquisition by the Company of any shares of Company Capital Stock or the capital stock or other equity interests of any Subsidiary of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except other than Company Options approved by the Board of Directors of the Company and listed on Section 2.2(b) of the Disclosure Schedule or exercises of outstanding Company Options in accordance with the agreements evidencing Company Optionsterms of the underlying option agreement and Plan;
(xij) hiring or termination of any employee or consultant of the Company or promotion, demotion or other change to the employment status or title of any officer of the Company or resignation or removal of any director of the Company;
(k) increase in the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any of its respective officers, directors, consultants or employees, or the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance or termination payment, bonus or other additional salary or compensation to any such Person, other than in the ordinary course of business (A) increased including the salary payment of bonuses or other compensation (including equity based compensation) payable commissions to any of their respective officers, directors, employees or consultants or (B) declared, paid or committed to pay (whether in cash or equity) any severance payment, termination payment, bonus, special remuneration or other additional or similar salary or compensation (including equity based compensation), in each case to any of their respective officers, directors, employees or consultants;
(xii) entered into, amended or terminated any Material Contract to which they are a party other than such persons in the ordinary course of businessbusiness or normal increases in base cash compensation) or as required by applicable law or any applicable contractual arrangement in place as of the date of this Agreement;
(xiiil) soldsale, leasedlease, licensed license or otherwise disposed other disposition of any of their the material assets (whether tangible or intangible) or properties of the Company or any of its subsidiaries outside of the ordinary course of business, including the sale of any Accounts Receivable, or any creation of any security interest in such material assets or properties, other material propertiesthan Permitted Liens;
(m) extension of credit or any loan by the Company or any of its subsidiaries to any Person, or purchase by the Company or any of its subsidiaries of any debt securities of any Person, except for agreements with customers entered into advances to employees for travel and business expenses and reimbursement of personal phone expenses, in each case in the ordinary course of business, consistent with past practices;
(xivn) created any security interest in incurrence by the Company or any of their assets or properties (whether tangible or intangible);
(xv) made any loan to or guaranteed any indebtedness its subsidiaries of any Person Indebtedness, amendment of the terms of any outstanding Indebtedness (or any Contract evidencing such Indebtedness) to which the Company is a party, guaranteeing by the Company or any of its subsidiaries of any Indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries, or guaranteeing of any Indebtedness or debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices), or purchased any debt securities of any Person or entered into any amendment to the terms of any such outstanding loan agreement;
(xvio) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms affirmative waiver or release of any such outstanding loan agreementmaterial right or claim of the Company, including any write-off or issued other compromise of any Accounts Receivable; 000000000 x00 (x) commencement or sold settlement of any debt securities of Legal Proceeding by the Company or any of its Subsidiaries;
(xvii) waived or released any material right or material claimsubsidiaries, including any waiverthe commencement, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(xviii) commenced or settled any lawsuit, or other formal investigation against the Company or any of its Subsidiaries relating to any of their businesses, properties or assets, settlement or, to the Knowledge of the Company, received written notice of the or threat of any such lawsuit lawsuit, proceeding or other formal investigation;
(xix) received investigation by or before a Governmental Authority against the Company, any formal written notice of any claim with respect to the ownership, interest or right by any Person other than the Company its subsidiaries or any of its Subsidiaries in the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Propertytheir respective assets;
(xx) except for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, issued, sold, transferred or granted, (A) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(xxi) other than Standard Form Agreements entered into in the ordinary course of business (A) sold, leased, licensed or transferred any Company Intellectual Property or executed, modified or amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, (B) purchased or licensed any Intellectual Property or executed, modified or amended any agreement with respect to the Intellectual Property of any Person, (C) entered into any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (D) changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(xxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights to any Company Products or Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(xxiii) purchased or sold any interest in real property, granted any security interest in any real property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property;
(xxiv) acquired, or agreed to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or acquired or agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(xxv) adopted or amended any Company Employee Plan, or executed or amended any Employee Agreement (other than the execution of the Company standard offer letter);
(xxvi) executed any strategic alliance, affiliate or joint marketing arrangement or agreement, in each such case, in an amount in excess of $75,000 in any one case;
(xxvii) other than in connection with the transactions contemplated by this Agreement, entered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, promoted, demoted or terminated or otherwise changed the employment status or title of any Employees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(xxx) agreed to do any of the things described in the preceding clauses (i) through (xxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Samples: Draft Agreement (Rovi Corp)
