No Changes. Since the Balance Sheet Date, there has not been, occurred or arisen any: (a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices; (b) amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment contemplated by this Agreement; (c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate; (d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheet; (e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance); (f) employment dispute, including, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company; (g) 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; (h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment; (i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable; (j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor); (k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices; (l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices; (m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties; (n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 of any 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 practice; (p) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company; (q) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing; (r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof); (s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan; (i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company; (u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property; (v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect; (w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or (x) 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 (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Article V, the Company and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practices and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment contemplated by this AgreementDocuments;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate;
(db) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company with respect to liabilities reflected or reserved against in the Current Balance SheetSheet or with respect to liabilities incurred in the ordinary course of business since the Balance Sheet Date;
(ec) expenditure, transaction or commitment exceeding $50,000 individually or $100,000 in the aggregate, excluding the fulfillment of Permitted Purchase Orders;
(d) 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)) or the loss of any material customer;
(fe) material employment dispute, including, including claims or matters raised by any individuals individual, Governmental Entity, works council, employee or any workers’ representative representatives, group of employees, bargaining unit, union or other labor organization, bargaining unit regarding, claiming or union regarding alleging labor trouble or claim of trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the CompanyCompany or any of its Subsidiaries;
(gf) adoption or 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;
(hg) adoption of or change in any material Tax (as defined election or accounting method in Section 2.10(a) hereof) electionrespect of Taxes, adoption of or change in any Tax accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, or any agreement or settlement or compromise of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(ih) 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 writing off notes or accounts receivable, for accounting purposes;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ki) except as reflected in the Compensation Schedule, increase in or decrease in or other change to the salary salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company to or any of its respective officersSubsidiaries to any Employees, directors, employees or advisors, or the (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equityequity or otherwise) by the Company or any of its Subsidiaries (with the exception of payments contemplated by this Agreement) of a severance payment, change of control payment, termination payment, bonus bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any such person of its Employees, other than the Specified Bonuses and Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee other than the ordinary course of business consistent with past practicesSpecified Bonuses or Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time;
(lk) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(ml) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company outside or any of its Subsidiaries (other than in the ordinary course of business), including, but not limited to, including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any security interest in such assets or properties;
(nm) loan by the Company or any of its Subsidiaries to any person or entity, or purchase by the Company of any debt securities of any person or entity Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practices), or forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(on) incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, or the issuance or sale of any debt securities of the Company or guaranteeing any 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 practiceits Subsidiaries;
(po) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(qp) commencement issuance, grant, delivery, sale or settlement of any Action purchase of, or proposal or Contract to issue, grant, deliver, sell or purchase by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(ri) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ii) any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing, except for issuances of Company Common Options or Company Capital Stock upon the exercise of Company Options issued under the PlanPlan and set forth in Section 3.2(d) of the Disclosure Schedule;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (ivq) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property any Third Party IP Assets to the CompanyCompany or any of its Subsidiaries;
(ur) agreement or modification to any agreement 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 Company Intellectual PropertyProperty Assets, other than any Contract that is disclosed in Section 3.13(a) of the Disclosure Schedule;
(vs) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wt) purchase or sale of any interest in real property, granting of any 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;
(u) acquisition by the Company or any of its Subsidiaries of, 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 other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company’s business;
(v) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other agreement with any works council, union, employee or workers’ representatives, group of employees or other labor organization, except as otherwise disclosed required by applicable Law;
(w) increase in Section 2.12(athe rights to indemnification of any Employees;
(x) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or authorizing any cash or equity exchange for any options granted under any of such plans other than the Unvested Option Cashout;
(y) execution, termination or amendment of any Employee Agreement (other than as contemplated by this Agreement or the execution of the Disclosure ScheduleCompany standard at will offer letter (or any standard employment agreement of any Subsidiary as required by Law), the form of which has been made available to Parent) with any Employee providing for annual base compensation in excess of $125,000;
(z) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(aa) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards;
(bb) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any employee;
(cc) alteration of any interest of the Company in any of its Subsidiaries or 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 or any of its Subsidiaries;
(ee) issuance, or agreement to issue, any refunds, credits, allowances or other concessions to customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(xff) agreement by the Company, Company or any officer or employees on behalf of the Company, its Subsidiaries to do any of the things described in the preceding clauses (a) through (wee) of this Section 2.9 3.8 (other than negotiations and agreements with Parent and its representatives regarding the transactions contemplated by this Agreement and the any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
No Changes. Since the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment contemplated by this Agreementof any Subsidiary;
(c) capital expenditure expenditure, transaction or commitment exceeding $25,000 individually or $75,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company exceeding $100,000 individually or $200,000 in the aggregateany of its Subsidiaries;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $50,000 25,000 in any one case, or $100,000 75,000 in the aggregate, of any Liabilities claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the CompanyCompany or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company liabilities reflected or reserved against in the Current Balance Sheet;
(e) 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);
(f) employment dispute, including, including claims or matters raised by any individuals individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the CompanyCompany or any of its Subsidiaries;
(g) adoption or 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;
(h) adoption of or change in any Tax accounting method or material Tax (as defined in Section 2.10(a) hereof) election, adoption closing agreement in respect of or change in any Tax accounting method, entry into any closing agreementTaxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) 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 writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or 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 StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or 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);
(k) material increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its their respective officers, directors, employees employees, consultants or advisors, or 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 or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Contract 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), 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, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its their respective assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside or any of the ordinary course of businessits Subsidiaries, including, but not limited to, including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any security interest in such assets or properties;
(n) material loan by the Company or any of its Subsidiaries to any person or entityPerson, or purchase by the Company or any of its Subsidiaries of any debt securities of any person Person or entity 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 any of its Subsidiaries of any material 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 practicepractices;
(p) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(q) commencement or settlement of any Action lawsuit by the CompanyCompany or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or any of its affairsSubsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (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 Property (as defined in Section 2.13 hereof)Property;
(s) issuance issuance, grant, delivery, sale or salepurchase, or proposal, contract or agreement to issue issue, grant, deliver, sell or sellpurchase, by the Company or any of its Subsidiaries, of 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 StockStock or shares of capital stock of any of its Subsidiaries, or any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing, except for issuances of Company Common Capital Stock upon the exercise of Company Options issued 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;
(i) except standard end user licenses entered into Plan in the ordinary course of business, business and consistent with past practice;
(t) (i) sale, sale lease, license or license transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity Person or with respect to the Intellectual Property of any person or entity, or (ii) Person except in the ordinary course of businessbusiness consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entityPerson, other than non-exclusive, end-user licenses for the Company’s products entered into 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 (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its their respective customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property to the CompanyCompany except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any agreement Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company Intellectual Propertyor any of its Subsidiaries;
(v) event or 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, granting of any security interest in any real property or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(x) acquisition by the Company or 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 other acquisition or 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;
(y) grant by the Company or any of its Subsidiaries of any severance, change in control or termination pay (in cash or otherwise) to any Employee, including any officer, except as otherwise payments made pursuant to written agreements disclosed in Section 2.12(a) of the Disclosure Schedule;
(z) adoption, amendment or termination of any Company Employee Plan, execution or amendment of any Employee 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 ordinary course of business consistent with past practice;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(bb) hiring, promotion, demotion or termination or other change to the employment status or title of any employees; or
(xcc) agreement by the CompanyCompany or any of its Subsidiaries, or any officer or employees on behalf of the CompanyCompany or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (wbb) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement Agreement, any Related Agreements and the any Employment Related Agreements).
Appears in 1 contract
No Changes. Since the Balance Sheet Date, there has not been, occurred or arisen any:
(a) except for the engagement of advisers for Third Party Expenses and transactions contemplated by this Agreement, transaction by the Company except in the ordinary course of business as conducted on that date and business, consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 25,000 individually or $200,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or business, consistent with past practices, of Liabilities of the Company 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, payments, discharges or satisfactions of Third Party Expenses and repayment of all Company Debt;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (intangible and whether or not covered by insurance);
(f) employment dispute, includingincluding but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) 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;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor) (other than the issuance of Company Common Stock in the Mandatory Conversion);
(k) hiring or termination of any employee or any officer of the Company, promotion, demotion or other change to the employment status or title of any employee or any officer of the Company or resignation or removal of any director of the Company;
(l) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants or advisors, or the declaration, adoption, agreement, contract, payment or binding commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesPerson;
(lm) Contract agreement, contract, covenant, instrument, lease, license or binding commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or binding commitment to which the Company is a party or by which it or any of its assets are bound, except other than agreements, contracts, covenants, instruments, leases, licenses or binding commitments entered into in the ordinary course of business business, consistent with past practicespractice;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(op) incurring incurrence by the Company of any 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 business, consistent with past practice;
practices, incurrence of trade payables in the ordinary course of business, consistent with past practices, and incurrence of Company Third Party Expenses in connection with the transactions contemplated by this Agreement; (pq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(q) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) 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 (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth on Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 25,000 individually or $200,000 250,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or business, consistent with past practices, of Liabilities of the Company 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) employment dispute, includingincluding but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) 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;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) hiring or termination of any officer or employee or consultant of the Company who earns more than $75,000, 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;
(l) other than in the ordinary course of business consistent with past practices in connection with promotions and existing Employee Agreements increase in or other change to the salary salary, or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants or advisors, or the declaration, adoption, agreement, contract, payment or binding commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesPerson;
(m) entering into, or amendment or termination of, any Material Contract;
(n) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(op) incurring incurrence by the Company of any 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 business, consistent with past practicepractices;
(pq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(qr) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(rs) 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;
(t) notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the PlanRights;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practicepractices, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity Person or with respect to the Intellectual Property Rights of any person or entityPerson, or (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entityPerson, (iii) 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 (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Technology or Intellectual Property Rights to the Company;
(uv) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Propertyproduct, service or technology of the Company;
(vw) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wx) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(xy) 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 (a) through (wx) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2015, and except as disclosed in the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) material employment dispute, including, including claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) other than in the ordinary course of business, change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPGAAP or by Law;
(h) adoption of or change in any material Tax (as defined election or, other than in Section 2.10(a) hereof) electionthe ordinary course of business, adoption of or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any material Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment or filing of any amended material Tax Return;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ki) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) 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, employees employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) 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 payment, termination payment, bonus or other additional salary or extraordinary compensation to any such person other than in the ordinary course of business consistent with past practicesPerson;
(lm) Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the ordinary course of business business, consistent with past practicespractice;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(op) incurring incurrence by the Company of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtednessIndebtedness, 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 business, consistent with past practicepractices;
(pq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(qr) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rs) claims or matters raised by any individual, Governmental Authority, 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;
(t) notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 2.13 2.14 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property Rights (as defined in Section 2.13 2.14 hereof);
(su) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options options issued under the Plan;
(i) except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past practicepractices, sale sale, lease, license or license transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity Person or with respect to the Intellectual Property Rights of any person or entityPerson, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entityPerson, (iii) 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 (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Technology or Intellectual Property Rights to the Company;
(uw) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual PropertyProduct;
(vx) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wy) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(xz) 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 (a) through (wy) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement
No Changes. Since December 31, 2015, and except as disclosed in the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) material employment dispute, including, including claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) other than in the ordinary course of business, change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPGAAP or by Law;
(h) adoption of or change in any material Tax (as defined election or, other than in Section 2.10(a) hereof) electionthe ordinary course of business, adoption of or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any material Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment or filing of any amended material Tax Return;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) (i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) 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, employees employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) 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 payment, termination payment, bonus or other additional salary or extraordinary compensation to any such person other than in the ordinary course of business consistent with past practicesPerson;
(lm) Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the ordinary course of business business, consistent with past practicespractice;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(op) incurring incurrence by the Company of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtednessIndebtedness, 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 business, consistent with past practicepractices;
(pq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(qr) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rs) claims or matters raised by any individual, Governmental Authority, 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;
(t) notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 2.13 2.14 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property Rights (as defined in Section 2.13 2.14 hereof);
(su) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options options issued under the Plan;
(i) except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past practicepractices, sale sale, lease, license or license transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity Person or with respect to the Intellectual Property Rights of any person or entityPerson, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entityPerson, (iii) 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 (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Technology or Intellectual Property Rights to the Company;
(uw) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual PropertyProduct;
(vx) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wy) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(xz) 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 (a) through (wy) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since the Balance Sheet DateDecember 31, 2013, 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 except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment except as expressly contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities of the Companyclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company liabilities reflected or reserved against in the Current Balance Sheet;
(ed) 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 (whether or not covered by insurance);
(fe) employment dispute, including, including claims or matters raised by any individuals individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble disputes or claim claims of wrongful discharge or other unlawful employment or labor practice or action with respect to by the Company;
(f) adoption of or change in accounting policies or 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) by the Company;
(g) 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;
(h) adoption making of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessmentassessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ki) increase in the salary (i) termination or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisorsextension, or the declarationmaterial amendment, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment waiver or modification of the terms terms, of any Material Contract to which not required by the Company is terms thereof or (ii) 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 party breach or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesdefault;
(mj) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company outside of the ordinary course of businessCompany, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest Lien in such material assets or properties;
(n) loan by material properties other than non-exclusive licenses of the Company Products to any person or entity, or purchase by the Company of any debt securities of any person or entity except for advances end-users pursuant to employees for travel and business expenses agreements that have been entered into in the ordinary course of business consistent with past practicespractices that do not materially differ in substance from the Standard Form Agreements;
(ok) loan by the Company to any Person, incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness for borrowed money, guaranteeing by the Company of any indebtednessIndebtedness 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 practicepractices;
(pl) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(qm) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(sn) issuance or sale, or contract Contract or agreement undertaking to issue or sell, by the Company or any of its subsidiaries of (i) 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 StockStock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of except, in either case, in accordance with agreements evidencing Company Common Stock upon the exercise of Company Options issued under the PlanOptions;
(o) 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 the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or exclusive license of any Company Intellectual Property IP or execution, modification Company Products or amendment execution of any agreement with respect to the Company Intellectual Property IP or Company Products with any person or entity or with respect Person (other than non‑exclusive licenses of the Company Products to the Intellectual Property of any person or entity, or (ii) except end‑users pursuant to agreements 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), (ii) purchase or exclusive license of any Intellectual Property Rights or execution, modification Technology or amendment execution of any agreement with respect to the Intellectual Property Rights or Technology of any person or entityPerson (other than Shrink‑Wrap Software), (iii) 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 (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property Rights or Technology to the Company (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, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(ur) agreement (i) increase in or modification decrease in or other 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 agreement pursuant to which any other party was granted marketingEmployees, distribution(ii) declaration, development, manufacturing payment or similar rights commitment or obligation of any type kind for the payment (whether in cash or scope with respect equity or otherwise) by the Company 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 any 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 Intellectual PropertyEmployee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(vs) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or condition effect of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by Effect with respect to the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(x) 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 (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents other than of the Charter Amendment contemplated by this AgreementCompany;
(c) capital expenditure or commitment by the Company exceeding $100,000 50,000 individually or $200,000 250,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities business, consistent with past practices, of the Company 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) employment dispute, includingincluding but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) 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;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a2.11) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) entry into a Material Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesMaterial Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, 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 such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 $25,000 in the aggregate;
(o) incurring incurrence by the Company of any indebtednessindebtedness for borrowed money, 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 business, consistent with past practicepractices;
(p) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(q) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairs, or or, to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.13 2.14 hereof) or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.13 2.14 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Common Stock upon the exercise of Company Options options issued under the PlanPlans;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity, or (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entity, (iii) 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 (iv) material change in pricing or royalties set or charged by the Company to its customers distributors or resellers or licensees or in pricing or royalties set or charged by persons who have licensed Technology or Intellectual Property Rights to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Propertyproduct, service or technology of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(x) agreement by the Company, or any officer or employees on behalf of the Company, Company to do any of the things described in the preceding clauses (a) through (w) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth on Section 4.9 of the Disclosure Letter, since the Balance Sheet Date, there has not been, occurred or arisen any:: 18
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(cb) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 50,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or of Liabilities of the Company reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(fe) employment dispute, includingor 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 individuals Employee or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(gf) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPCompany;
(hg) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with a Governmental Authority with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment, or filing of any amended material Tax Return;
(ih) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(j) hiring or termination of any Employee of the Company with a title of Senior Manager or above, request by the company that any Employee resign from the Company, promotion, demotion or other change to the employment status or title of any Employee of the Company with a title of Senior Manager or above or resignation or removal of any director of the Company, in each case, other than in the ordinary course of business;
(k) increase in the salary or other compensation (including any bonus or equity based compensation whether payable in cash, securities or otherwise) or fringe benefits, payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants, or advisors, other than increases to salaries or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into equity incentive opportunities made in the ordinary course of business consistent with past practice;
(l) adoption of or entrance into by the Company any Contract for, or any termination, extension, amendment or modification of the terms of any Contract to which other commitment by the Company is to pay, a party severance payment or by which it or similar termination payment to any of its assets are boundofficers, except directors, Employees, consultants, or advisors, other than in the ordinary course of business consistent with past practicesbusiness;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(o) incurring incurrence by the Company of any indebtednessmaterial Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtednessIndebtedness, 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 practicebusiness;
(p) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(q) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company of in or to the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property (as defined in Section 2.13 hereof)Rights;
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, Common Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses for agreements with customers entered into in the ordinary course of businessbusiness on the Company’s form of customer agreement, consistent with past practicesale, sale lease, license or license transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entityPerson, or (ii) except for licenses for Off the Shelf Software entered into in the ordinary course of business, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entityPerson, (iii) 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 (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Technology or Intellectual Property Rights to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual PropertyProduct;
(v) event or condition of any character that has had had, or is could reasonably likely be expected to have have, a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) or any alteration, amendment, modification, violation or termination of the Disclosure Scheduleany Lease Agreements; or
(x) 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 (a) through (w) of this Section 2.9 4.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Yext, Inc.)
No Changes. Since the Balance Sheet DateJanuary 31, 2006, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 5.1 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or other the organizational documents other than the Charter Amendment contemplated by this Agreementof any Subsidiary;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the CompanyCompany or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company liabilities reflected or reserved against in the Current Balance SheetSheets;
(ed) 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);
(fe) employment dispute, including, including claims or matters raised by any individuals individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the CompanyCompany or any of its Subsidiaries;
(gf) adoption or 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;
(hg) adoption of or change in any material Tax (as defined election in Section 2.10(a) hereof) electionrespect of Taxes, adoption of or change in any Tax accounting methodmethod in respect of Taxes, entry into any closing agreement, agreement or settlement or compromise of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(ih) 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 writing off notes or accounts receivable;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or 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 StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or 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 or Company Unvested Shares;
(kj) increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its their respective officers, directors, employees directors or advisorsemployees, or 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 or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(mk) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company outside or any of the ordinary course of businessits Subsidiaries, including, but not limited to, including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity except for advances to employees for travel and business expenses in the ordinary course of business as conducted on that date and consistent with past practices;
(ol) 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 or amendment to the terms of any outstanding loan agreement;
(m) 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 practicepractices;
(pn) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(qo) commencement or settlement of any Action lawsuit by the CompanyCompany or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the CompanyCompany or the Principal Stockholders, threat of any Action lawsuit or proceeding or other investigation against the Company or any of its affairsSubsidiaries or relating to any of their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rp) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (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 person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(vq) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wr) lease, license, sublease or other occupancy of any Leased Real Property acquisition by the Company or any Subsidiary or agreement by the Company or any Subsidiary 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 other acquisition or 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 Subsidiaries;
(s) grant by the Company or any Subsidiary of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except as otherwise payments made pursuant to written agreements disclosed in Section 2.12(a) of the Disclosure Schedule; or
(xt) agreement by the CompanyCompany or any of its Subsidiaries, or any officer or employees on behalf of the CompanyCompany or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (ws) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the any Related Agreements).
Appears in 1 contract
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen any:
(a) 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;
(b) amendments or changes to the Charter Documents or other organizational documents other than of the Charter Amendment contemplated by this AgreementCompany;
(c) third party capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than (i) payments, discharges or satisfactions in the ordinary course of business or Liabilities business, consistent with past practices, of the Company 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of any material customer of the Company (whether or not covered by insurance);
(f) employment dispute, including, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPCompany;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a2.11) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) material revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Common Stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock, or 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Contract to which the Company is entry into a party Material Contract, termination or by which it or any extension of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practicea Material Contract, or any termination, extension, a material amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesMaterial Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity entity, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(o) incurring incurrence by the Company of any indebtednessindebtedness for borrowed money, 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 business, consistent with past practicepractices;
(p) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any material account receivable of the Company;
(q) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingCompany;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.13 2.14 hereof) or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.13 2.14 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, Common Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of options under the Plan and issuances of Company Common Stock upon the exercise of Company Options options issued under the Plan;
(it) except standard end user licenses of the following, other than in connection with agreements entered into in the ordinary course of business, consistent with past practice, on the Company’s standard form without material modification: (i) sale or license of any Company Intellectual Property to, or execution, material modification or material amendment of any agreement with respect to the any Company Intellectual Property with any person or entity or with respect to the Intellectual Property of with, any person or entity, or (ii) except in the ordinary course of business, purchase or license of any third-party Intellectual Property Rights from, or execution, material modification or material amendment of any agreement with respect to the any third-party Intellectual Property of Rights with, any person or entity, (iii) agreement agreement, or material modification or material amendment of an existing agreement agreement, with respect to the development of any Content & Technology or Intellectual Property Rights, with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees licensees, or in pricing or royalties set or charged by persons who have licensed Content & Technology or Intellectual Property Rights to the Company;
(u) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual PropertyProduct;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(x) agreement by the Company, or any officer or employees on behalf of the Company, Company to do any of the things described in the preceding clauses (a) through (w) of this Section 2.9 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by execution of this Agreement and the Related AgreementsAgreements to which the Company is a party).
Appears in 1 contract
No Changes. Since Except in compliance with this Agreement, since the Current Balance Sheet DateDate (or, with respect to subsections (c) and (d) below, between the Current Balance Sheet Date and the date hereof), there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents certificate of incorporation or other organizational documents other than bylaws of the Charter Amendment contemplated by this AgreementCompany;
(c) capital expenditure or commitment by the Company exceeding $100,000 25,000 individually or $200,000 75,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 25,000 in any one case, or $100,000 50,000 in the aggregate, of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against obligations set forth in the Current Balance SheetSheet or Disclosure Schedule;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) employment dispute, includingincluding but not limited to, claims or matters raised by any individuals or any workers’ ' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) 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;
(h) change in any material election in respect of Taxes (as defined below), adoption of or change in any material Tax (as defined accounting method in Section 2.10(a) hereof) electionrespect of Taxes, adoption of agreement or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or or, except in accordance with the Company's certificate of incorporation, 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options, Company Unvested Common Stock or Company Warrants;
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Contract material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of businessCompany, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 of any 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 practicepractices;
(po) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(qp) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairs, or to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(rq) notice of any claim or potential claim of ownership, interest or right ownership by any person other than the Company of the Company Intellectual Property (as defined in Section SECTION 2.13 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person’s 's Intellectual Property (as defined in Section SECTION 2.13 hereof);
(sr) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Capital Stock upon the exercise of Company Options options issued under the PlanPlans or upon the exercise of Company Warrants;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(ut) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Propertyproducts or technology of the Company;
(vu) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wv) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(xw) agreement or commitment by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (wv) of this Section SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
No Changes. Since the Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents certificate of incorporation or other organizational documents other than bylaws of the Charter Amendment contemplated by this AgreementCompany;
(c) capital expenditure or commitment by the Company exceeding $100,000 25,000 individually or $200,000 50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 25,000 in any one case, or $100,000 50,000 in the aggregate, of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company liabilities: (i) reflected or reserved against in the Current Balance SheetSheet or (ii) incurred after the Balance Sheet Date in the ordinary course of business or in connection with the transactions contemplated by this Agreement;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(f) employment dispute, including, including claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) 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;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its material assets (whether tangible or intangible), including without limitation, writing down the value of material inventory or writing off material notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Material Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesMaterial Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity entity, 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 of any indebtednessIndebtedness, 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 practice;
(p) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(q) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairsCompany, or or, to the Company’s Knowledge, any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Propertyproducts or technology of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure ScheduleCompany; or
(x) 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 (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since the Balance Sheet DateSeptember 30, 2000, there has not been, occurred ---------- or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents Articles of Incorporation or other organizational documents other than Bylaws of the Charter Amendment contemplated by this AgreementCompany;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $100,000 10,000 individually or $200,000 25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 10,000 in any one case, or $100,000 25,000 in the aggregate, of any Liabilities of the Companyclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business or Liabilities of the Company liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to, to or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or loss of any customer (whether direct or indirect) accounting for more than 10% of gross revenue of the Company on a trailing twelve month basis (in each case, whether or not covered by insurance);
(f) employment dispute, including, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Companyaction;
(g) 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;
(h) change in any election in respect of Taxes (as defined below), adoption of or change in any material Tax (as defined accounting method in Section 2.10(a) hereof) electionrespect of Taxes, adoption of agreement or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableassets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stockcommon stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock, or 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(f);
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practicesperson;
(l) Contract any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangibleincluding intangible assets) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except those entered into in the ordinary course of business consistent with past practicesbusiness;
(m) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 of any 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 practicepractices;
(po) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(qp) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any Action lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(rq) notice to the Company, or to the knowledge of the Company and any Stockholder, director or officer of the Company, of any claim or potential claim of ownership, interest or right ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person’s 's Intellectual Property (as defined in Section 2.13 hereof3.12 below);
(sr) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(is) except standard end user licenses entered into other than in the ordinary course of business, consistent with past practice, practice (i) sale or license of any Company Intellectual Property or execution, modification or amendment entering into of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(ut) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing development or similar rights of any type or scope with respect to any Company Intellectual Propertyproducts or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any character type that has had or is reasonably likely to have a Company Material Adverse Effect;Effect on the Company; or
(w) lease, license, sublease or other occupancy of any Leased Real Property agreement by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) agreement by the Company, or any officer or employees on behalf of the Company, Company to do any of the things described in the preceding clauses (a) through (wv) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related AgreementsAgreement).
Appears in 1 contract
Samples: Merger Agreement (Lantronix)
No Changes. Since March 31, 1999, except as disclosed in Section 2.9 of the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company or the Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment contemplated by this Agreement;
(c) capital expenditure or commitment by the Company or the Subsidiary exceeding $100,000 25,000 individually or $200,000 100,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $50,000 25,000 in any one case, or $100,000 in the aggregate, of any Liabilities of the Companyclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business or Liabilities of the Company liabilities reflected or reserved against in the Current Balance SheetSheet or arising after the date thereof;
(ed) destruction of, material damage to, to or the loss of any material assets (whether tangible or intangible)assets, material business or material customer of the Company or the Subsidiary (whether or not covered by insurance);
(fe) employment dispute, including, claims collective work stoppage or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble strike or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Companyaction;
(gf) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or the Subsidiary other than as required by GAAP;
(hg) change in any material election in respect of Taxes (as defined below), adoption of or change in any material Tax (as defined accounting method in Section 2.10(a) hereof) electionrespect of Taxes, adoption of agreement or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(ih) revaluation by the Company or the Subsidiary of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivabletheir respective assets;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, Stock or any split, combination or reclassification in respect of any shares of Company Capital Stock, Stock or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or by the Subsidiary of Subsidiary Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Warrants;
(kj) increase in the salary or other compensation payable or to become payable by the Company or the Subsidiary to any of its respective officers, directors, employees or advisorsadvisors (other than, in the case of employees who are not officers or directors, increases in salary in the ordinary course consistent with past practice that do not exceed $5,000 per year), or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) payment, by the Company or the Subsidiary, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person person;
(k) other than those entered into in the ordinary course of business consistent with past practices;
(l) Contract practice, any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or the Subsidiary is a party or by which it or any of its assets (whether tangible or intangibleincluding intangible assets) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, bound or any termination, extension, amendment or modification of the terms of any Contract material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or Subsidiary is a party or by which it they or any of its their assets are bound, except in the ordinary course of business consistent with past practices;
(ml) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company outside of or the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, Subsidiary or any creation of any security interest in such material assets or material properties;
(nm) loan by the Company or the Subsidiary to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 the Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or the Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or the Subsidiary 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 practicepractices;
(pn) waiver or release of any right or claim of the CompanyCompany or the Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Subsidiary;
(qo) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(xp) agreement by the Company, the Subsidiary or any officer or employees on behalf of the Company, Company or the Subsidiary to do any of the things described in the preceding clauses (a) through (wu) of this Section SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related AgreementsAgreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Probusiness Services Inc)
No Changes. Since Except as set forth on Section 3.10 of the Disclosure Schedule, since the Balance Sheet Date, there has not been, occurred or arisen any:
(a) transaction by the event or condition of any character that has had or would reasonably be expected to have a Company except in the ordinary course of business as conducted on that date and consistent with past practicesMaterial Adverse Effect;
(b) amendments material transaction or changes to commitment by the Charter Documents Company or other organizational documents other than relinquishment of any material right by the Charter Amendment contemplated by this AgreementCompany;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate;
(d) payment, discharge discharge, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $50,000 50,000, in any one case, or $100,000 150,000 in the aggregate, of any Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course Ordinary Course of business or Business of claims, rights and Liabilities of the Company properly reflected or reserved against in the Current Balance Sheet;
(ed) 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 (in each case, whether or not covered by insurance);
(fe) employment dispute, including, including claims or matters raised by any individuals individual, Governmental Authority, or any workers’ representative organization, bargaining unit or union regarding regarding, claiming or alleging any labor trouble issue or claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or other any unlawful employment or labor practice labor-related practice, breach or action with respect to the Company;
(gf) adoption or 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) by the Company other than as required by GAAPCompany;
(hg) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreementmethod or Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, filing of any amended Tax return, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockShare Capital, or (ii) any split, combination or reclassification in respect of any shares of Company Capital StockShare Capital, or (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 StockShare Capital, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor)Share Capital;
(ki) increase in the salary (A) termination or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment amendment, waiver or modification of the terms terms, of any Material Contract, or (B) breach of or default under any Material Contract to which or the Company is occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a party breach or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesdefault;
(mj) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of businessCompany, including, but not limited to, including the sale of any accounts receivable of the Company, or any creation of any security interest Lien in such assets or propertiesproperties 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;
(nk) loan by the Company to any person or entityPerson, or purchase forgiveness by the Company of any debt securities of loan to any person or entity except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) Person, incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company 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 Ordinary Course of business consistent with past practiceBusiness;
(pl) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(q) commencement or settlement of any Action by the Company, the commencement, settlement, written notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against or involving the Company or its properties, assets, business or affairs, or any reasonable basis for any of the foregoing;
(rm) written notice of any claim or potential claim of ownership, interest or right ownership by any person Person, other than the Company Company, of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property (as defined in Section 2.13 hereof)Rights;
(sn) issuance or sale, or contract Contract or agreement undertaking to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the PlanShare Capital;
(o) (i) except standard end user licenses entered into increase in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property decrease in or execution, modification or amendment of any agreement with respect 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 Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entityto, or in respect of, any of its Employees, (ii) except in the ordinary course of businessdeclaration, purchase payment or license commitment or obligation of any Intellectual Property kind for the payment (whether in cash or executionequity or otherwise) by the Company of a notice payment, modification severance payment, leave approval or amendment payment, change of control payment, any agreement with respect other termination or employment-related payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to the Intellectual Property any of any person or entityits, Employees, (iii) agreement promise to pay any special bonus or modification special remuneration (whether payable in cash, equity or amendment of an existing agreement with respect otherwise) to the development of any Intellectual Property with a third partyEmployee, or (iv) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement;
(p) increase in or alteration to the indemnification obligations of the Company to any Employee;
(q) execution, termination or amendment of any Employee Agreement (other than execution of the Company’s applicable standard offer letter, each of the forms of which have been delivered by the Company);
(r) the hiring of any individual or termination of any Employee, including any officer of the Company, the promotion, demotion or other change in pricing to employment status or royalties set title of any officer of the Company, or charged the resignation or removal of any member of the Board of Directors of the Company;
(s) waiver or release of any right or claim of the Company;
(t) any action by the Company to its customers that, if taken from and after the execution of this Agreement until the Closing, would be prohibited by Section 6.1 or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;Section 6.2; or
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) agreement commitment by the Company, or any officer or employees Employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (wt) of this Section 2.9 3.10 (other than negotiations with Parent and its representatives Buyer regarding the transactions contemplated by this Agreement and the any Related Agreements).
Appears in 1 contract
Samples: Purchase Agreement (RR Media Ltd.)
No Changes. Since Except as set forth on Section 5.18 of the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the Balance Sheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents other than the Charter Amendment contemplated by this Agreement;
(c) capital expenditure or commitment or other payment obligation by the Company exceeding $100,000 50,000 individually or $200,000 in the aggregate;
(db) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in satisfaction by the aggregate, Company of any Liabilities of the Companyclaim or Liability, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance SheetSheet as required under the Contract relating to such Liability or trade payables incurred in the ordinary course of business;
(ec) borrowed or agreed to borrow any amount of, incurred or become subject to any Indebtedness, or mortgaged, pledged or subject to any Lien any properties or assets of the Company;
(d) destruction of, damage to, or loss of any material assets of the Company (whether tangible or intangible), ) having a replacement value in excess of $25,000 or any material business or material customer Customer of the Company (in each case, whether or not covered by insurance);
(fe) employment dispute, including, claims adoption by the Company of any new accounting method or matters raised change by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change Company in accounting methods or practices (including any change in depreciation or amortization policies or rates) of the Company;
(f) adoption by the Company other than as required of any new Tax election inconsistent with the Company’s prior course of practice, change by GAAP;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change the Company in any Tax accounting methodelection, entry amended Tax Returns filed by the Company, new Contract entered into involving the Company with respect to Taxes, an assertion of any closing agreementwritten or to the Knowledge of the Company other Tax claim or assessment against the Company, settlement or compromise by the Company of any Tax claim or assessment, or surrender of any right to claim a refund of Taxes by the Company, extension or waiver by the Company of the limitation period applicable to any Tax claim or assessment;
(i) revaluation assessment or the filing by the Company of any Tax Return, change in Tax residence of its assets the Company or any other action taken outside the ordinary course of business that would have the effect of increasing the Tax liability of the Company for any Tax period (whether tangible or intangible), including without limitation, writing down portion thereof) beginning after the value of inventory or writing off notes or accounts receivableClosing Date;
(jg) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockSecurities, or any split, combination or reclassification in respect of any shares of Company Capital StockSecurities, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares Company Securities (other than Company Securities issued upon the exercise or conversion of Company Capital Stockthe Convertible Securities), or any direct or indirect repurchase, redemption, or other acquisition by the Company of of, or any shares of issuance of, any Company Capital Stock Securities (or options, warrants or other rights convertible into, exercisable or exchangeable thereforfor Company) or any equity appreciation, phantom equity or similar rights;
(h) resignation or removal of any officer, director or manager of the Company;
(i) adoption, amendment or termination of any Benefit Plan, or adopting any new employee benefit plan, arrangement or agreement (including any such plan, arrangement or agreement providing for retention, change of control, severance or similar payments or potential payments);
(j) made or granted any bonus or any wage, salary or other compensation increase to any Employee;
(k) increase in the salary implemented any location closing or other compensation payable or to become payable by layoff of employees that could implicate the Company to any of its respective officersWorker Adjustment Retraining and Notification Act, directors, employees or advisors29 U.S.C. § 2101 et seq., or any similar state or local Laws (collectively, the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices“WARN Act”);
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of businessbusiness of the Company, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(nm) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person Person, or entity except for advances to employees for travel and business expenses in guarantee any of the ordinary course of business consistent with past practices;
(o) incurring by the Company foregoing of any 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 othersPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practiceof the Company;
(pn) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable Accounts Receivable, or change in practices or procedures with respect to the collection of the CompanyAccounts Receivable or extension of any other incentive with respect thereto;
(qo) commencement or settlement of any Action by the Company, the commencement, settlement, notice written or, to the Knowledge of the Company, other notice or threat of any Action or proceeding adverse change in the relationship between the Company and its customers, suppliers or other vendors;
(p) commencement or settlement by the Company of any lawsuit, or the commencement of any lawsuit, investigation or similar proceeding against the Company Company;
(q) increase in any wage, salary, bonus or its affairsother compensation of any officer, employee, director, representative or any reasonable basis for any consultant of the foregoingCompany;
(r) employment dispute, including claims or matters raised by any individual, Governmental Authority, 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 or violation of Law, in each case with respect to the Company;
(s) written notice of any claim or potential claim of ownership(i) ownership of, interest in or right by to any person other than the Company of the Company Intellectual Property by any Person (as defined in Section 2.13 hereofother than the Company) or of infringement (ii) infringement, misuse, or misappropriation by the Company of any other personPerson’s Intellectual Property (as defined in Section 2.13 hereof)Rights;
(st) issuance or (i) sale, lease, license, assignment, or contract or agreement to issue or sell, transfer by the Company of to any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license Person of any Company Intellectual Property or execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company is a party with respect to the Company Intellectual Property with any person or entity Person or with respect to the Intellectual Property of any person or entityPerson, or (ii) except in each case, excluding standard end user licenses and Contracts and similar Contracts entered into in the ordinary course of businessbusiness of the Company, purchase (ii) purchase, assignment, or license of any Intellectual Property or execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company is a party with respect to the Intellectual Property of any person or entityPerson, (iii) agreement new Contract or modification termination, modification, or amendment of an existing agreement Contract to which the Company is a party, with respect to the development of any Technology or Intellectual Property Rights with a third party, party or (iv) lapse, expiration, abandonment or any other disposition of any Company Intellectual Property;
(u) entering into a Contract or material modification to any Contract pursuant to which any other party was granted design, development, use, import, branding, advertising, promotion, marketing, distribution, testing, packaging, labelling, manufacturing or selling rights with respect to any Company product (including the AMDS), except in the ordinary course of business of the Company;
(v) lease, license, sublease or other occupancy of any Leased Real Property by the Company;
(w) change in the pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Technology or Intellectual Property Rights to the Company, or make any other material change to the terms and conditions (including payment, discount, allowance, warranty or indemnification terms) upon which the Company makes the Company products (including the AMDS) available to third parties, or otherwise;
(x) other transaction outside the ordinary course of business of the Company;
(uy) agreement promise, commitment or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) agreement Contract by the Company, or any officer or employees Employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (wx) of this Section 2.9 5.18 (other than negotiations with Parent Buyer and its representatives Representatives regarding the transactions contemplated by in this Agreement and the Related Agreements); or
(z) event, occurrence of development that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
No Changes. Since Except as set forth on Section 4.9 of the Disclosure Letter, since the Balance Sheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or other organizational documents of the Company other than the Charter Amendment as contemplated by this Agreement;
(cb) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 50,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, satisfaction of any Liabilities claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business or of Liabilities of the Company reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);
(fe) employment dispute, includingor 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 individuals Employee or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(gf) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPCompany;
(hg) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with a Governmental Authority with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment, or filing of any amended material Tax Return;
(ih) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(j) hiring or termination of any Employee of the Company with a title of Senior Manager or above, request by the company that any Employee resign from the Company, promotion, demotion or other change to the employment status or title of any Employee of the Company with a title of Senior Manager or above or resignation or removal of any director of the Company, in each case, other than in the ordinary course of business;
(k) increase in the salary or other compensation (including any bonus or equity based compensation whether payable in cash, securities or otherwise) or fringe benefits, payable or to become payable by the Company to any of its respective officers, directors, employees employees, consultants, or advisors, other than increases to salaries or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into equity incentive opportunities made in the ordinary course of business consistent with past practice;
(l) adoption of or entrance into by the Company any Contract for, or any termination, extension, amendment or modification of the terms of any Contract to which other commitment by the Company is to pay, a party severance payment or by which it or similar termination payment to any of its assets are boundofficers, except directors, Employees, consultants, or advisors, other than in the ordinary course of business consistent with past practicesbusiness;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such assets or properties;
(n) loan by the Company to any person or entityPerson, or purchase by the Company of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(o) incurring incurrence by the Company of any indebtednessmaterial Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtednessIndebtedness, 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 practicebusiness;
(p) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(q) commencement or settlement of any Action lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company of in or to the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other personPerson’s Intellectual Property (as defined in Section 2.13 hereof)Rights;
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, Common Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses for agreements with customers entered into in the ordinary course of businessbusiness on the Company’s form of customer agreement, consistent with past practicesale, sale lease, license or license transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entityPerson, or (ii) except for licenses for Off the Shelf Software entered into in the ordinary course of business, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entityPerson, (iii) 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 (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) 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 (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement
No Changes. Since the Balance Sheet Date, except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto, the business of the Company has been conducted in the ordinary course of business, consistent with past practice and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents of the Company or other organizational documents any of its subsidiaries other than the Charter Amendment as contemplated by this Agreement;
(cb) capital expenditure or commitment by the Company exceeding $100,000 50,000 individually or $200,000 in the aggregate;
(dc) payment, discharge or satisfactionsatisfaction of any individual claim, in any amount liability or obligation in excess of $50,000 in any one case(absolute, accrued, asserted or $100,000 in the aggregateunasserted, of any Liabilities contingent or otherwise) of the Company, other than payments, discharges or satisfactions in the ordinary course of business or business, consistent with past practices, of Liabilities of the Company 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;
(ed) 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 (whether or not covered by insurance);
(fe) employment labor dispute, including, including claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(gf) adoption of or 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;
(hg) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of election or change in any Tax accounting method, entry entering into any closing agreementagreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessmentassessment or filing of any amended Tax Return;
(ih) 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 writing off notes or accounts receivableAccounts Receivable (other than depreciation or amortization of any asset in the ordinary course of business consistent with past practices);
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or the capital stock or other equity 105132706 v11 interests of any of the Company’s subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock or other equity interests of any of the Company’s subsidiaries, or 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 StockStock or the capital stock or other equity interests of any of the Company’s subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock or other equity interests of any of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), 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 terms of the underlying option agreement and Plan;
(j) 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, employees consultants or advisorsemployees, 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 payment, or termination payment, bonus or other additional salary or compensation to any such person Person, other than in the ordinary course of business consistent with past practices;
(l) Contract including the payment of bonuses or commissions to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into such persons in the ordinary course of business consistent with past practice, or normal increases in base cash compensation) or as required by applicable law or any termination, extension, amendment or modification applicable contractual arrangement in place as of the terms date of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practicesthis Agreement;
(ml) sale, lease, license or other disposition of any of 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, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any security interest in such material assets or properties, other than Permitted Liens;
(nm) extension of credit or any loan by the Company or any of its subsidiaries to any person or entityPerson, or purchase by the Company or any of its subsidiaries of any debt securities of any person or entity Person, except for advances to employees for travel and business expenses and reimbursement of personal phone expenses, in each case in the ordinary course of business business, consistent with past practices;
(on) incurring incurrence by the Company or any of its subsidiaries of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreementIndebtedness (or any Contract evidencing such Indebtedness) to which the Company is a party, guaranteeing by the Company or any of its subsidiaries of any indebtednessIndebtedness, 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 practicepractices;
(po) affirmative waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
Accounts Receivable; 000000000 x00 (qx) commencement or settlement of any Action Legal Proceeding by the CompanyCompany or any of its subsidiaries, the commencement, settlement, notice settlement or, to the Knowledge of the Company, written notice or threat of any Action or lawsuit, proceeding or other investigation by or before a Governmental Authority against the Company or its affairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) agreement by the Company, any of its subsidiaries or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).their respective assets;
Appears in 1 contract
Samples: Draft Agreement (Rovi Corp)
No Changes. Since Except as set forth in Schedule 2.9 of the Balance Sheet DateDisclosure Schedule, since the date of the balance sheet included in the Company interim financials, and through the date of this Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practicespractices and except as contemplated by this Agreement;
(b) amendments or changes to the Charter Documents Articles of Organization or other organizational documents other than Bylaws of the Charter Amendment contemplated by this AgreementCompany, except for filing of a Certificate of Designation, Preferences and Rights to establish and authorize the Series D Preferred Stock;
(c) capital expenditure or capital commitment by the Company exceeding of more than $100,000 individually 25,000 in any individual case or $200,000 50,000 in the aggregateaggregate (other than commitments to pay expenses incurred in connection with this transaction);
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to, to or loss of any material assets (whether tangible or intangible)assets, material business or material customer of the Company (whether or not covered by insurance);
(fe) employment disputework stoppage, labor strike or other labor trouble, or any material action, suit, claim, labor dispute or grievance relating to any labor, safety or discrimination matter involving the Company, including, claims or matters raised by any individuals or any workers’ representative organizationwithout limitation, bargaining unit or union regarding labor trouble or claim charges of wrongful discharge or other unlawful employment labor practices or labor practice or action with respect to the Companyactions;
(gf) change in accounting methods methods, principles or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAPCompany;
(hg) adoption of or change revaluation in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation respect by the Company of any of its assets (whether tangible or intangible)assets, including including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in with respect of to any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or 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 any direct or indirect repurchase, redemption, purchase or other acquisition by the Company of any shares Company Capital Stock, other than repurchases of Company Capital Stock (or optionsfrom directors, warrants officers, employees, consultants or other rights convertible into, exercisable persons performing services for the Company pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the termination of employment or exchangeable therefor)other services;
(ki) split, combination or reclassification of any Company Capital Stock;
(j) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, including, but not limited to, the modification of any existing compensation or equity arrangements with such individuals (which modification may include the amendment of any vesting terms related to Company Options held by such individuals), or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) payment, by the Company Company, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than except for in the ordinary course of the Company's business consistent with past practicesor as the Company is obligated as of the date hereof;
(k) granting of any increase in severance or termination pay or entry into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of the Merger;
(l) Contract material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, is bound or any termination, extension, amendment or modification of the terms of any Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are is bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any lien or security interest (except for those arising by operation of law and statute) in such assets or properties except in the ordinary course of business and consistent with past practices ("Liabilities"), or such liens or interests which do not materially impair the value or use of such assets or properties;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity 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 of any 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 business, consistent with past practicepractices;
(po) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany (other than as required by GAAP);
(p) commencement or notice or threat of commencement of any lawsuit or proceeding against or investigation of the Company or its affairs;
(q) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (except as defined set forth in Section 2.13 hereofSchedule 2.3(b) or as contemplated by this Agreement (including the issue of infringement shares of Series D Preferred Stock for cash), issuance or sale by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances foregoing or any amendment of Company Common Stock upon the exercise of Company Options issued under the Planany existing equity arrangement;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(vr) event or condition of any character that has had or is reasonably likely would be expected to have a Company Material Adverse Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(xs) agreement by the Company, Company or any officer or employees on behalf of the Company, thereof to do any of the things described in the preceding clauses (a) through (ws) of this Section 2.9 (other than negotiations and other actions with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related AgreementsAgreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zapworld Com)