No Changes. Since September 30, 2000, there has not been, occurred ---------- or arisen any: (a) transaction by the Company except in the ordinary course of business consistent with past practices; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company; (c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate; (d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet; (e) destruction of, damage to or loss of any material assets or material business 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) labor trouble or claim of wrongful discharge or other unlawful labor practice or action; (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 or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (i) revaluation by the Company of any of its assets; (j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or 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 officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person; (l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business; (m) sale, lease or other disposition of any of the material assets or material properties 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, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices; (o) 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; (p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing; (q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below); (r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing; (s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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; (t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company; (u) hiring or termination of employees of the Company; (v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or (w) 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 (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Lantronix)
No Changes. Since September 30Except as set forth in Schedule 2.9 of the Disclosure Schedule, 2000since 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 Articles of Incorporation Organization or Bylaws of the Company, 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 expenditure commitment by the Company exceeding $10,000 individually or of more than $25,000 in any individual case or $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 $10,000 in any one case, or $25,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to or loss of any material assets assets, business or material business 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);
(fe) work stoppage, labor trouble strike or claim 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, without limitation, charges of wrongful discharge or other unlawful labor practice practices or actionactions;
(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) change revaluation in any election in material respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assets, 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 common stock, or any split, combination or reclassification in respect of any shares of Company 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 Common 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 Common Capital Stock (or options from directors, officers, employees, consultants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with persons performing services for the agreements evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(f)agreements under which the Company has the option to repurchase such shares at cost upon the termination of employment or 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 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 payment, by the Company Company, of a severance payment, termination payment, bonus or other additional salary or compensation to any such personperson except for in the ordinary course of the Company's business or 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) any 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 (including intangible assets) are is bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are is bound, except those entered into in the ordinary course of business;
(m) sale, lease lease, license or other disposition of any of the material assets or material properties of the Company Company, or any creation of any lien or security interest (except for those arising by operation of law and statute) in such material assets or material properties, properties except for Company Intellectual Property licensed in the ordinary course of businessbusiness 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, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(o) 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) the commencement, settlement, commencement or notice or, to the Knowledge or threat of the Company, or Stockholders, threat commencement of any lawsuit or proceeding against or other investigation against of the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) notice to except as set forth in Schedule 2.3(b) or as contemplated by this Agreement (including the Companyissue of shares of Series D Preferred Stock for cash), issuance or to the knowledge of the Company and any Stockholder, director or officer of the Company, of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement sale by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or saleCompany Capital Stock, or contract to issue or sellsecurities exchangeable, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stocktherefor, or any securities, warrants, options or rights to purchase any of the foregoingforegoing or any amendment of any existing equity arrangement;
(sr) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely would be expected to have a Company Material Adverse Effect on the CompanyEffect; or
(ws) agreement by the 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 (vs) (other than negotiations and other actions with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zapworld Com)
No Changes. Since September 30Except as set forth on Section 2.10 of the Disclosure Schedule, 2000since the Balance Sheet Date 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 Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 250,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsassets (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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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) 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;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessPerson;
(m) entering into, or amendment or termination of, any Material Contract;
(n) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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, 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;
(no) loan by the Company to any person Person, or entitypurchase by the Company of any debt securities of any Person, incurring except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) 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 practices;
(oq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable Accounts Receivable;
(r) commencement or settlement of any lawsuit by the Company;
(ps) the commencementclaims or matters raised by any individual, settlementGovernmental Entity, notice oror 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 Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qt) 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 ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Rights;
(ri) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than except standard end user licenses entered into in the ordinary course of business, consistent with past practice (i) practices, sale or license of any Company Intellectual Property or entering into 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, (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or entering into 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;
(tv) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products product, service or technology of the Company;
(uw) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(x) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(wy) agreement by the Company 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 (vx) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30, 2000the 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 business, consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date, payments, discharges or satisfactions of Third Party Expenses and repayment of all Company Debt;
(e) destruction of, damage to to, or loss of any material assets or material business of the Company or loss of any customer (whether direct tangible or indirect) accounting for more than 10% of gross revenue of the Company on a trailing twelve month basis (in each case, intangible and whether or not covered by insurance);
(f) employment dispute, including 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsassets (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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except ) (other than the issuance of Company Common Stock in accordance with the agreements evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(fMandatory 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 personPerson;
(lm) any 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 (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any 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 those other than agreements, contracts, covenants, instruments, leases, licenses or binding commitments entered into in the ordinary course of business, consistent with past practice;
(mn) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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, 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;
(no) loan by the Company to any person Person, or entitypurchase by the Company of any debt securities of any Person, incurring except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) 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 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; (oq) 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;
(p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(w) 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 (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Since September 30Except as provided in Section 2.10 of the Disclosure Schedule, 2000since the Balance Sheet Date 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 Articles of Incorporation or Bylaws Charter Documents of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 50,000 individually or $25,000 250,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of 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 to, or loss of any material assets (whether tangible or intangible), material business or material business 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 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsassets (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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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 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;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound entry into a Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessMaterial Contract;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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 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, incurring or purchase by the Company of any indebtednessdebt 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, in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(o) incurrence by the Company of any indebtedness 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 practices;
(op) 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;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(qr) 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 ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's ’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital 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 options issued under the Plans;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into 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, (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or entering into 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;
(tu) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products product, service 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 type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(wx) 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 (vw) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30, 2000the date of the Current Balance Sheet and except as otherwise not prohibited by Section 4.1 of this Agreement, there has or have not been, occurred ---------- or arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practicesMaterial Adverse Effect;
(b) amendments or changes to the Articles of Incorporation Company Charter Documents or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or capital expenditure commitment by the Company or any of its Subsidiaries exceeding $10,000 25,000 individually or $25,000 50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 25,000 in any one case, or $25,000 50,000 in the aggregate, of any claim, liability claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liability, other than payment, discharge or satisfaction of claims, liabilities and obligations in the ordinary course of business or of 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 material business intangible) of the Company or loss any of its Subsidiaries with a book value in excess of $25,000 in any customer (whether direct one case or indirect) accounting for more than 10% of gross revenue of $50,000 in the Company on a trailing twelve month basis (in each caseaggregate, whether or not covered by insurance);
(f) labor trouble disputes or claim of wrongful discharge or other unlawful labor practice or actionaction with respect to the Company or any of its Subsidiaries;
(g) 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) change by the Company or any of its Subsidiaries in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement adoption or change by the Company or any of its Subsidiaries of any accounting method which would materially alter the historic treatment of an item on a Tax Return, Contract or settlement by the Company or any of its Subsidiaries of any claim or assessment in respect of Taxes, or extension or waiver by the Company or any of its Subsidiaries of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assetsor its Subsidiaries’ assets (whether tangible or intangible);
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock or any stock or securities of its Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Common StockCapital Stock or any stock or securities in its Subsidiaries, 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 Common StockCapital Stock or any stock or securities in its Subsidiaries, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Common Capital Stock or any stock or securities in its Subsidiaries (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements Contracts evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(f)Company Restricted Stock;
(k) increase in the base salary or other compensation payable or to become payable by the Company to or any of its officers, directors, employees or advisorsSubsidiaries to any Company Personnel, or the declaration, payment or payment, commitment or obligation of any kind for the payment by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such personPerson;
(l) any agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries taken as a whole, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in any such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(nm) outstanding loan by the Company or any of its Subsidiaries to any person or entityPerson, incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness in an amount in excess of $25,000, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness in an amount in excess of $25,000, 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 Company Personnel for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(on) granting of any waiver or release by the Company or any of its Subsidiaries of any right or claim of material to the CompanyCompany and its Subsidiaries taken as a whole, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(po) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholdersthreat, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingits Subsidiaries;
(qp) 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 by any person Person other than the Company or any of the Company its Subsidiaries of Owned Intellectual Property (as defined in Section 3.12 below) owned by or owned, developed or created by the Company or any of its Subsidiaries, or of any claim or potential claim of infringement or misappropriation by the Company or any of its Subsidiaries of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Property;
(rq) issuance or sale, or contract to issue or sell, by the Company or any of its Subsidiaries of any shares of Company Common Stock, Capital Stock or any other form of capital stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Capital Stock or any other form of capital stockstock or securities in its Subsidiaries, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock or any stock or securities in its Subsidiaries upon the exercise thereof;
(sr) other than in the ordinary course of business, consistent with past practice (i) sale or license by the Company or any of its Subsidiaries of any Company Intellectual Property or 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 entityProperty, (ii) purchase or license by the Company or any of its Subsidiaries of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entityProperty, (iii) agreement Contract by the Company or any of its Subsidiaries with respect to the development of any Intellectual Property with a third partythird-party outside of the ordinary course of business, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its their customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property to the CompanyCompany or any of its Subsidiaries, except in the case of clause (i) or (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business;
(ts) agreement Contract or material modification to agreement any Contract pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring Company or termination any of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Companyits Subsidiaries; or
(wt) agreement by the Company or any of its Subsidiaries, or any officer or employees employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (vs) (other than negotiations with Parent and its representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
Samples: Merger Agreement (Vistaprint N.V.)
No Changes. Since September 30Except as set forth on Section 5.18 of the Company Disclosure Schedule or as expressly contemplated by this Agreement, 2000since the Balance Sheet Date, there has not been, occurred ---------- or arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment or other payment obligation by the Company exceeding $10,000 50,000 individually or $25,000 200,000 in the aggregate;
(db) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in satisfaction by the aggregate, Company of any claim, liability claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liability, other than paymentpayments, discharge discharges or satisfaction in the ordinary course satisfactions of business of liabilities Liabilities 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 to, or loss of any material assets or material business of the Company or loss of any customer (whether direct tangible or indirectintangible) accounting for more than 10% having a replacement value in excess of gross revenue $25,000 or any material business or Customer of the Company on a trailing twelve month basis (in each case, whether or not covered by insurance);
(fe) labor trouble adoption by the Company of any new accounting method or claim of wrongful discharge or other unlawful labor practice or action;
(g) change by the 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) change the Company in any election in Tax election, amended Tax Returns filed by the Company, new Contract entered into involving the Company with respect of Taxes (as defined below), adoption or change in any accounting method in respect of to Taxes, agreement or settlement an assertion of any written or to the Knowledge of the Company other Tax claim or assessment in respect against the Company, settlement or compromise by the Company of Taxesany 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 in respect of Taxes;
(i) revaluation or the filing by the Company of any Tax Return, change in Tax residence of its assetsthe 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 (or portion thereof) beginning after the Closing Date;
(jg) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Securities, or any split, combination or reclassification in respect of any shares of Company Common 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 Common 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 Common Stock Securities (or options 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, except in accordance with the agreements evidencing Company Options and distributions salary or other compensation increase to Stockholders for income tax purposes pursuant to Section 5.1(f)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 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 by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person“WARN Act”);
(l) any agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company outside of the ordinary course of business of the Company, including the sale of any Accounts Receivable, 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;
(nm) loan by the Company to any person Person, or entity, incurring purchase by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of any Person, or guarantee any of the Company or guaranteeing foregoing 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 practicesof the Company;
(on) 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;
(po) the commencement, settlement, notice written or, to the Knowledge of the Company, other notice or Stockholders, threat of any lawsuit 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 or its affairs, or any reasonable basis for any of the foregoingCompany;
(q) notice increase in any wage, salary, bonus or other compensation of any officer, employee, director, representative or consultant of the Company;
(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, or to the knowledge of the Company and any Stockholder, director or officer of the Company, ;
(s) written notice of any claim or potential claim of (i) ownership by of, interest in or right to any person other than the Company of the Company Intellectual Property by any Person (as defined in Section 3.12 belowother than the Company) owned by or developed (ii) infringement, misuse, or created by the Company or of infringement misappropriation by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Rights;
(rt) issuance or (i) sale, lease, license, assignment, or contract to issue or sell, transfer by the Company of to any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license Person of any Company Intellectual Property or entering into execution, 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, in each case, excluding standard end user licenses and Contracts and similar Contracts entered into in the ordinary course of business of the Company, (ii) purchase purchase, assignment, or license of any Intellectual Property or entering into execution, 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 termination, modification, or amendment of an existing 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;
(tx) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights transaction outside the ordinary course of any type or scope with respect to any products or technology business of the Company;
(uy) hiring promise, commitment or termination of employees of Contract by the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(w) agreement by the Company or any officer or employees Employee on behalf of the Company Company, to do any of the things described in the preceding clauses (a) through (vx) of this Section 5.18 (other than negotiations with Parent Buyer and its representatives Representatives regarding the transactions contemplated by in this AgreementAgreement 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 September 30the Balance Sheet Date, 2000except as set forth on Section 2.10 of the Disclosure Schedule, there has not been, occurred ---------- or arisen any:
(a) other than immaterial transactions with a total monetary value that does not exceed $50,000 individually or $200,000 in the aggregate, transaction by the Company except in the ordinary course of business and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 50,000 individually or $25,000 200,000 in the aggregate, except as contemplated by the Company’s 2008 operating plan approved by the Company’s Board of Directors, a copy of which has been provided to Parent;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsassets (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 common stockCompany Common Stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or options options, warrants 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 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;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it Material Contract or any of its assets (including intangible assets) are bound termination or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessthereof;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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 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, incurring 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 in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(o) 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 consistent with past practices;
(op) 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;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qr) written notice or, to the Knowledge of the Company, or to the knowledge of the Company and any Stockholder, director or officer of the Companyoral notice, of any claim or potential claim of ownership ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's ’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital 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 options issued under the Plan or issuances of shares of Company Common Stock or Company Preferred Stock upon the exercise of Company Warrants;
(si) other than except standard end user licenses entered into in the ordinary course of business, consistent with past practice (i) practice, sale or license of any Company Intellectual Property or entering into 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, (ii) except in the ordinary course of business, consistent with past practice, purchase or license of any Intellectual Property Rights or entering into execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entity, (iii) agreement or material 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 who have licensed Technology or Intellectual Property Rights to the Company;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(v) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(w) agreement by the Company 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 (vw) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30Except as set forth in Section 2.9 of the Company Disclosure Letter, 2000since the Current Balance Sheet Date, there has not been, occurred ---------- or arisen any:
(aA) transaction by the Company or any of its subsidiaries except in the ordinary course Ordinary Course of business consistent with past practicesthe Company's Business;
(bB) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or any of its subsidiaries;
(cC) capital expenditure or capital expenditure commitment by the Company exceeding or any of its subsidiaries exceeding, prior to the date hereof, $10,000 50,000 individually or $25,000 100,000 in the aggregate;, and after the date hereof, which does not constitute a breach of Section 4.1.
(dD) payment, discharge or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 100,000 in the aggregate, of any claim, liability or obligation Liability (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course Ordinary Course of business of liabilities the Company's Business, Liabilities reflected or reserved against in the Current Balance SheetSheet and Liabilities incurred after the date hereof which does not constitute a breach of Section 4.1;
(eE) destruction of, damage to or loss of any material assets assets, material business or material business customer of the Company or loss any of any customer its subsidiaries (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);
(fF) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(gG) 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;
(hH) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;agreement
(iI) revaluation by the Company or any of its subsidiaries of any of its their respective assets;
(jJ) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock or any capital stock of any subsidiary of the Company, or any split, combination or reclassification in respect of any shares of Company Common StockCapital Stock or any shares of the capital stock of any subsidiary of the Company, 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 Common StockCapital Stock or shares of the capital stock of any subsidiary of the Company, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock or by any subsidiary of the Company of the capital stock of such subsidiary (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options and distributions to Stockholders Company Warrants and except for income tax purposes pursuant to Additional Employee Options issued after the date hereof which do not constitute a breach of Section 5.1(f)4.1 of this Agreement;
(kK) except for adjustments in the Ordinary Course of the Company's Business for employees (other than the officers or directors of the Company) which do not constitute a breach of Section 4.1 of this Agreement after the date hereof, increase in the salary or other compensation payable or to become payable by the Company or any of its subsidiaries to any of its officers, officers or directors, or in the wage schedule for any other employees or advisorsadvisors of the Company or any of its subsidiaries, or the declaration, payment or commitment or obligation of any kind for the payment payment, by the Company or any of its subsidiaries, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(lL) other than the Contracts identified in Section 2.9(L) of the Company Disclosure Letter and Contracts entered into in the Ordinary Course of the Company's Business after the date hereof which do not constitute a breach of Section 4.1 of this Agreement, enter into any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its subsidiaries is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;or
(mM) sale, lease lease, license or other disposition of any of the material assets or material properties of the Company or any of its subsidiaries 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;
(nN) loan by the Company or any of its subsidiaries to any person or entityentity (other than test account loans given in reasonable amount in the Ordinary Course of the Company's Business and loans entered into after the date hereof in accordance with Section 4.1.N of this Agreement), incurring by the Company or any of its subsidiaries of any indebtedness, guaranteeing by the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing of any debt securities of others, others except for advances to employees for travel and business expenses in the ordinary course Ordinary Course of business consistent with past practicesthe Company's Business;
(oO) 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;
(pP) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholdersany of its subsidiaries, threat of any lawsuit or proceeding or other investigation against the Company or any of its subsidiaries or its affairs, or any reasonable basis for any of the foregoing;
(qQ) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company or any of its subsidiaries of any other person's Intellectual Property (as defined in Section 3.12 below)Property;
(rR) issuance or sale, or contract to issue or sell, by the Company or any of its subsidiaries of any shares of Company Common Stock, Capital Stock or any other form of its subsidiaries' capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Capital Stock or any other form of its subsidiaries' capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;, except for issuances of Company Capital Stock upon exercise of the Company Options and Company Warrants described in Section 2.3.B of the Company Disclosure Schedule and issuances of Additional Employee Options in the Ordinary Course of the Company's Business which are not in breach of Section 4.1 hereof.
(sS) other than Except for a transaction entered into after the date hereof in the ordinary course Ordinary Course of businessthe Company's Business which does not violate Section 4.1 hereof, consistent with past practice (i) the sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;of
(tT) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its subsidiaries except in the Ordinary Course of the Company's Business;
(uU) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, any event or condition of any type character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyCompany or any of its subsidiaries; or
(wV) agreement by the Company or any of its subsidiaries (or any officer or employees on behalf of of, and binding upon, the Company or any of its subsidiaries) to do any of the things described in the preceding clauses (a) through (vu) of this Section (other than negotiations with Parent Sybase and its representatives regarding the transactions Transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Since September 30Except as set forth in Section 2.6 of the Disclosure Schedule, 2000since the Balance Sheet Date through and including the date of this Agreement, there has not been, occurred ---------- or arisen any:
(a) transaction amendment or change to the Company Charter Documents;
(b) capital expenditure or capital commitment by the Company in any amount in excess of $100,000 in any individual case or $500,000 in the aggregate or acquisition of any Person or other business enterprise or division thereof (whether by merger, consolidation, sale of stock, sale of assets or otherwise) or acquisition or any material assets except for acquisitions of inventory in the ordinary course of business consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 100,000 in any one case, individual case or $25,000 500,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetand consistent with past practices;
(ed) destruction of, damage to or loss of any material properties or assets or material business of the Company or loss having a fair market value in excess of any customer $100,000 (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), or non-renewal of any agreement between the Company and any Large Reseller, Top Vendor or Top Payor;
(e) work stoppage, labor strike or other comparable labor trouble, or any material action, suit, claim, demand, or labor dispute relating to any labor, employment and/or safety matter involving the Company, including material charges of wrongful dismissal or discharge, discrimination, wage and hour violations, or other material unlawful labor and/or employment practices or actions;
(f) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) material 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) change in any election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) material revaluation by the Company of any of its their assets, including the writing down of the value of inventory or writing off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices;
(jh) declarationdividend, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stock, or any split, combination or reclassification in respect of any shares securities of Company Common Stockthe Company, or any issuance or authorization of any the issuance of any other securities of the Company or any rights of security holders of the Company in respect of, in lieu of or in substitution for shares for, any of Company Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or 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)foregoing;
(ki) increase in the salary or other compensation payable or (i) repricing of any right to become payable by acquire securities of the Company or any amendment or acceleration or waiver of any vesting terms related to any of its officers, directors, employees or advisorsaward of, or award with respect to, any securities of the Company held by any employees, consultants, contractors, or advisors of the Company or (ii) declaration, payment payment, commitment, approval of, or commitment or undertaking of an obligation of any other kind for the payment by the Company of a severance paymentbonus, termination payment, bonus commission or other additional salary salary, compensation or compensation employee benefits to any such personPerson (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan) not reserved for on the Interim Balance Sheet;
(j) employee terminations which would constitute a “plant closing” or “mass layoff” within the meaning of the Worker Adjustment and Retraining Notification (“WARN”) Act;
(k) granting of material severance or termination or other pay or benefits to any employee, consultant or contractor or entering into any Contract with respect thereto; or adoption or amendment of any employee benefit plan, Benefit Plan or severance plan;
(l) any agreement, contract, covenant, instrumentsale, lease, license or commitment to which other disposition of any assets or properties of the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms creation of any agreement, contract, covenant, instrument, lease, license Lien on such assets or commitment to which the Company is party or by which it or any of its assets are boundproperties, except those entered into sales or non-exclusive licenses of Company Products in the ordinary course of businessbusiness and consistent with prior practices and in each case, other than as would not reasonably be expected to be material to the Company taken as a whole;
(m) sale, lease or other disposition of any of the material assets or material properties 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 entityPerson, incurring incurrence by the Company of any indebtednessmaterial Indebtedness, guaranteeing draw-down of, increase in, repayment of, or amendment of the terms of any material Indebtedness, guarantee by the Company of any indebtednessmaterial Indebtedness, issuance or sale of any debt securities of the Company or purchase of or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business and consistent with past prior practices;
(on) 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, except in the ordinary course of business and consistent with prior practices;
(o) commencement or written notice of commencement by any Governmental Authority of any lawsuit, claim or proceeding against, investigation by any Governmental Authority of the Company or their affairs, or commencement of any litigation by the Company, or settlement of any lawsuit, claim, proceeding or investigation (regardless of the party initiating the same);
(p) the commencement, settlement, notice or, to the Knowledge of the Company, (i) transfer or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created sale by the Company or of infringement by the Company of to any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license third Person of any Company Intellectual Property or the entering into of any agreement license agreement, distribution or reseller agreement, security agreement, assignment or other conveyance, or option for any of the foregoing, with respect to the Company Intellectual Property with any person Third Person, (ii) purchase or entity other acquisition from a third Person of ownership in any Intellectual Property or technology, or the entering into of any license agreement, distribution agreement, reseller agreement, security agreement, assignment or other conveyance, or option for any of the foregoing, with respect to the Intellectual Property or technology of any person third Person (other than licenses for Open Source Software, commercially available software, or entity, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entityShrink Wrap Code), (iii) agreement with respect to the development of any Intellectual Property 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 Third Persons who have licensed Intellectual Property or technology to the Company or (iv) entering into, or amendment of, any Contract with respect to the development of any material Intellectual Property or technology by a Third Person (other than agreements with employees) on behalf of the Company, in each case as other than as would not reasonably be expected to be material to the Company;.
(tq) agreement entry into of any material Contract, or modification to agreement any Contract, pursuant to which any other party Third Person was granted marketingdevelopment, distribution, development manufacturing or similar rights of any type or scope with respect to any products or technology Company Products, except in the ordinary course of business and consistent with prior practices;
(r) to the Knowledge of the Company;, any security breach or cyber-attack against the Company or its facilities, or involving information with respect to the Company’s customers or suppliers, financial systems or information, or projections, plans or strategies; or
(us) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholdersany event, event occurrence, change, effect or condition of any type that character that, individually or in the aggregate, has had had, or is could reasonably likely be expected to have have, a Company Material Adverse Effect on the Company; or
(w) 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 (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement)Effect.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
No Changes. Since September 30Except as set forth in SECTION 2.9 of the Disclosure Schedule, 2000since the Balance Sheet Date, 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) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or the organizational documents of any of its Subsidiaries;
(c) capital expenditure or capital expenditure commitment by the Company or any of its Subsidiaries exceeding $10,000 50,000 individually or $25,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company or any of its Subsidiaries), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of or 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 business customer of the Company or loss any of any customer its Subsidiaries (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 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 actionaction with respect to the Company or any of its Subsidiaries;
(g) 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) change in any material election in respect of Taxes (as defined belowin SECTION 2.10(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension (other than a properly filed extension attributable to an extension of time for the filing of any tax returns) or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible);
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Common Stock or any Company Preferred Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock or Company Preferred 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 Common Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock or Company Preferred Stock (or options options, warrants 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)or Company Unvested Shares;
(k) increase in 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 or advisors, 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;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its their assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company or any of its Subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(n) loan by the Company or any of its Subsidiaries to any person or entity, incurring by the Company or any of its Subsidiaries of any indebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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;
(p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or their affairs, or any reasonable basis for any of the foregoing;
(q) 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 by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (as defined in Section 3.12 belowSECTION 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 3.12 belowSECTION 2.13 hereof);
(r) issuance or sale, or contract or agreement to issue or sell, by the Company or any of its Subsidiaries of any shares of Company Common Stock, Capital Stock or shares of Capital Stock of any other form of capital stock its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Capital Stock or shares of Capital Stock of any other form of capital stockits Subsidiaries, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plans;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into 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) purchase or license of any Intellectual Property or entering into 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 or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the CompanyCompany or any of its Subsidiaries;
(t) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the CompanyCompany or any of its Subsidiaries;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(v) lease, license, sublease or other occupancy of any Leased Real Property (as defined in SECTION 2.12(a) hereof) by the CompanyCompany or any of its Subsidiaries; or
(w) agreement by the Company or any of its Subsidiaries, or any officer or employees on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (v) of this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Documentum Inc)
No Changes. Since September 30Except as set forth on Section 4.9 of the Disclosure Letter, 2000since the Balance Sheet Date, there has not been, occurred ---------- or arisen any:
(a) transaction by amendments or changes to the Charter Documents of the Company except in the ordinary course of business consistent with past practicesother than as contemplated by this Agreement;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 50,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(ed) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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);
(fe) employment dispute, or receipt of written notice of any claim, or written threat of a claim, that the Company has violated any employment Laws, including any such claims or matters raised by any 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 actionaction 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) change in any election in respect adoption of Taxes (as defined below), adoption or change in any material Tax election or any Tax accounting method in method, entering into any agreement with a Governmental Authority with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment in respect assessment, or filing of Taxesany amended material Tax Return;
(ih) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including 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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options 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, except 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 accordance with each case, other than in the agreements evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(f)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 officers, directors, employees employees, consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the declaration, payment or commitment or obligation ordinary course of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such personbusiness consistent with past practice;
(l) any agreement, contract, covenant, instrument, lease, license adoption of or commitment to which entrance into by the Company is party any Contract for, or other commitment by which it the Company to pay, a severance payment or similar termination payment to any of its assets (including intangible assets) are bound officers, directors, Employees, consultants, or any terminationadvisors, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into other than in the ordinary course of business;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company outside of the ordinary course of business, including the sale of any Accounts Receivable, or any creation of any security interest in such 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 Person, or entity, incurring purchase by the Company of any indebtednessdebt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business;
(o) incurrence by the Company of any material 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 practicesbusiness;
(op) 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;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(qr) 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 ownership, interest or right by any person Person other than the Company of in or to the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Rights;
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, Stock or any securities, warrants, options or rights to purchase any of the foregoing;
(si) other than except for agreements with customers entered into in the ordinary course of businessbusiness on the Company’s form of customer agreement, consistent with past practice (i) sale sale, lease, license or license transfer to any Person of any Company Intellectual Property or entering into 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, (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 entering into 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;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(w) 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 (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement
No Changes. Since September 30the Balance Sheet Date, 2000except 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 amendments or changes to the Charter Documents of the Company except in the ordinary course or any of business consistent with past practicesits subsidiaries other than as contemplated by this Agreement;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 50,000 individually or $25,000 200,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any individual claim, liability or obligation in excess of $50,000 (absolute, accrued, asserted or unasserted, contingent or otherwise)) of the Company, other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(ed) destruction of, material damage to to, or loss of any material assets (whether tangible or material business intangible) of the Company or loss any of any customer its subsidiaries (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);
(fe) labor dispute, including claims or matters raised by any individuals or workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or actionaction 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) change in any election in respect adoption of Taxes (as defined below), adoption or change in any Tax election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment in respect or filing of Taxesany amended Tax Return;
(ih) revaluation by the Company or any of its subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the value of inventory or writing off notes or Accounts 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 common stockCompany 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 Common StockCapital Stock 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 Common StockCapital Stock 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 Common Capital Stock or the capital stock or other equity interests of any of the Company’s subsidiaries (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except other than Company Options approved by the Board of Directors of the Company and listed on Section 2.2(b) of the Disclosure Schedule or exercises of outstanding Company Options in accordance with the agreements evidencing terms of the underlying option agreement and Plan;
(j) hiring or termination of any employee or consultant of the Company Options and distributions or promotion, demotion or other change to Stockholders for income tax purposes pursuant to Section 5.1(f)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 personPerson, other than in the ordinary course of business (including the payment of bonuses or commissions to such persons in the ordinary course of business or normal increases in base cash compensation) or as required by applicable law or any applicable contractual arrangement in place as of the date of this Agreement;
(l) any agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company or any of its subsidiaries outside of the ordinary course of business, including the sale of any Accounts Receivable, or any creation of any security interest in such material assets or material properties, other than Permitted Liens;
(m) extension of credit or any loan by the Company or any of its subsidiaries to any Person, or purchase by the Company or any of its subsidiaries of any debt securities of any Person, except for Company Intellectual Property licensed advances to employees for travel and business expenses and reimbursement of personal phone expenses, in each case in the ordinary course of business, consistent with past practices;
(n) loan incurrence by the Company or any of its subsidiaries of any Indebtedness, amendment of the terms of any outstanding Indebtedness (or any Contract evidencing such Indebtedness) to any person or entity, incurring by which the Company of any indebtednessis 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 practices;
(o) affirmative 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; 000000000 x00 (x) commencement or settlement of any Legal Proceeding by the Company;
(p) Company or any of its subsidiaries, the commencement, settlement, notice settlement or, to the Knowledge of the Company, written notice or Stockholders, threat of any lawsuit 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;
(q) notice to the Company, or to the knowledge any of the Company and any Stockholder, director or officer of the Company, of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, its subsidiaries or any securities, warrants, options or rights to purchase any of the foregoingtheir respective assets;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(w) 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 (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Draft Agreement (Rovi Corp)
No Changes. Since September 30Except as set forth on Company Schedule 2.8, 2000since December 31, 1999, 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 Articles articles of Incorporation incorporation or Bylaws bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 50,000 in the aggregateaggregate other than commitments to make expenditures contemplated by this Agreement;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 25,000 in any one case, or $25,000 50,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business and payment of liabilities reflected or reserved against in the Current Balance SheetAccrued Salaries;
(e) destruction of, damage to or loss of any material assets assets, material business or material business 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) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(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 or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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);Options.
(k) Except for the salary increases set forth on Company Schedule 2.8(k) made in the ordinary course of business, consistent with past practices, increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment payment, by the Company Company, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) 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 (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it they or any of its their assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease lease, license or other disposition of any of the material assets or material properties of the Company exceeding, individually, $25,000 or, in the aggregate, $50,000 in value, and which was outside the ordinary course of business consistent with past practices, 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, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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, outside of the ordinary course of business consistent with past practices;
(p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) notice to the Company, or to the knowledge of the Company and any Stockholder, director or officer of the Company, of any claim or notice of any potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.12 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below2.12 hereof);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital 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 Capital Stock upon the exercise of Company Options;
(s) other than except in the ordinary course of business, consistent with past practice practices, (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;
(t) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, any event or condition of any type character that has had or or, to the Knowledge of the Company, is reasonably likely to have a Material Adverse Effect on the Company; or
(wv) agreement by the Company 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 (vu) of this Section 2.8 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Since September 30, 2000the 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 Articles of Incorporation Charter Documents or Bylaws of other organizational documents other than the CompanyCharter Amendment contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 100,000 individually or $25,000 200,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities of the Company, other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business or Liabilities of liabilities 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), material business or material business 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method in respect of Taxesmethod, agreement entry into any closing agreement, settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsassets (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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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 personperson other than in the ordinary course of business consistent with past practices;
(l) any agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company is a party or by which it or any of its assets (including intangible assetswhether tangible or intangible) are bound 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 agreement, contract, covenant, instrument, lease, license or commitment Contract 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 businessbusiness consistent with past practices;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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 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 practicespractice;
(op) 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;
(pq) 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 lawsuit Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qr) 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 ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.13 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 3.12 below2.13 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital 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;
(si) other than except standard end user licenses entered into in the ordinary course of business, consistent with past practice (i) practice, sale or license of any Company Intellectual Property or entering into 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 entering into 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;
(tu) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the CompanyCompany Intellectual Property;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the CompanyCompany except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(wx) agreement by the Company 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 (vw) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30Except as provided in Section 2.10 of the Disclosure Schedule, 2000since the Balance Sheet Date 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 the Balance Sheet Date;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the Company;
(c) material decrease in the Company’s annual contract value;
(d) capital expenditure or capital expenditure commitment therefor by the Company exceeding $10,000 25,000 individually or $25,000 100,000 in the aggregate;
(de) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payment(i) payments, discharge discharges or satisfaction in the ordinary course of business satisfactions of liabilities reflected or reserved against in the Current Balance SheetSheet or (ii) incurred in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(ef) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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);
(fg) employment dispute, including 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 actionaction with respect to the Company;
(gh) 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;
(hi) change in any election in respect adoption of Taxes (as defined below), adoption or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ij) material revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(jk) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Common Stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or options options, warrants 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);
(kl) increase in the salary or other compensation payable or to become payable by the Company to any of its 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 pursuant to the Company’s written plans and policies in effect as of the Balance Sheet Date and listed in Section 2.22(b)(1) of the Disclosure Schedule;
(lm) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound entry into a Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrumentMaterial Contract;
(n) sale, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets (whether tangible or material 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 material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(no) loan by the Company to any person or entity, incurring or purchase by the Company of any indebtednessdebt 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, in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(p) incurrence by the Company of any indebtedness 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 practices;
(oq) 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;
(pr) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or or, to the Knowledge of the Company, other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qs) 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 ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's ’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(rt) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, 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 options issued under the Plans;
(su) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property to, or entering into execution, modification or 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, (ii) purchase or license of any third-party Intellectual Property Rights from, or entering into execution, modification or amendment of any agreement with respect to the any third-party Intellectual Property of Rights with, any person or entity, (iii) agreement agreement, or modification or amendment of an existing agreement, with respect to the development of any Content & Technology or Intellectual Property Rights, with a third partyparty (other than custom research projects that involve less than $50,000), or (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;
(tv) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the CompanyCompany Product;
(uw) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(x) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(wy) 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 (vx) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Gartner Inc)
No Changes. Since September 30, 2000From the Balance Sheet Date 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 practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 100,000 individually or $25,000 250,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities, other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance Sheet;
(ed) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(ge) 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;
(hf) adoption of or change in any election in respect of Taxes material Tax (as defined below)) election, adoption of or change in any Tax accounting method in respect of Taxesmethod, agreement entry into any closing agreement, settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ig) material revaluation by the Company of any of its assetsassets (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 common stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or 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);
(kh) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees Employees or advisors, which increase (individually or in the aggregate) is material to the Company, 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;
(li) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets or material properties 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, incurring by the Company of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any material indebtedness, issuance or sale of any debt securities, purchase of a material amount of 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 practices;
(oj) waiver or release of any right rights or claim claims of the Company, including any write-off offs or other compromise of any account receivable of the Company, with a value in excess of $25,000 individually or $50,000 in the aggregate;
(pk) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, (other than on the part of Parent or any reasonable basis for any of the foregoingits affiliates, as to which this representation is not made);
(ql) notice to the Company, or to the knowledge of receipt by the Company and any Stockholder, director or officer of the Company, written notice of any claim or potential claim of ownership ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 belowSECTION 2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 belowSECTION 2.14 hereof);
(ri) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than except standard end user licenses/hosting agreements entered into in the ordinary course of business, consistent with past practice (i) practice, sale or license of any Company Intellectual Property or entering into 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 person, or entity, (ii) except in the ordinary course of business, consistent with past practice, purchase or license of any Intellectual Property or entering into execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entityperson, (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) 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 who have licensed Intellectual Property to the Company;
(tn) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on the CompanyEffect; or
(wo) agreement by the Company 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 (vm) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).of this
Appears in 1 contract
No Changes. Since September 30Except as contemplated or required by this Agreement or as consented to by Parent in writing pursuant to Article V, 2000during the period from the Balance Sheet Date to the date of this Agreement, and during the period from and after the Date of this Agreement to the Closing Date, 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) amendments modification, amendment or changes change to the Articles of Incorporation or Bylaws of the CompanyCharter Documents;
(c) capital expenditure expenditure, transaction or capital expenditure commitment by the Company exceeding $10,000 35,000 individually or $25,000 150,000 in the aggregateaggregate by the Company;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $10,000 35,000 in any one case, or $25,000 150,000 in the aggregate, of any claim, liability liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in on the Current Balance Sheet;
(e) material destruction of, damage to to, or loss of any material assets or material business of the Company or loss of any customer (whether direct tangible or indirect) accounting for more than 10% of gross revenue of the Company on a trailing twelve month basis (in each case, intangible and whether or not covered by insurance), material business or material customer of the Company;
(f) material employment dispute, including material claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble or claim of trouble, wrongful discharge or any other unlawful employment or labor practice or actionaction with respect to the Company;
(g) adoption 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;
(h) adoption of or change in any material election in respect of Taxes (as defined below)other than in the ordinary course of business, adoption or change in any material accounting method in respect of TaxesTaxes other than in the ordinary course of business, agreement or settlement of any claim or assessment in respect of material Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesmaterial Taxes (other than by reason of filing a Return within an automatically extended filing period);
(i) revaluation by the Company of any material portion of its assetsassets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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) (i) increase in or other material change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its officers, directors, employees respective officers or advisors, directors or any material increase in or other material change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its Current Employees or consultants or (ii) 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 bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any such personof its officers or directors or declaration, payment or commitment or obligation of any kind for the material payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Current Employees or consultants;
(l) entering into any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessMaterial Contract;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company Company, including 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 each case other than in the ordinary course of businessbusiness consistent with past practice;
(n) loan by the Company to any person Person (except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices), or entity, purchase by the Company of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(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 obligations to employees reimburse Employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company, including any write-off waiver, release or other compromise of any material account receivable of the Company;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, written notice or, to the Knowledge knowledge of the Company, threat or Stockholders, threat other notice of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for relating to any of the foregoingtheir businesses, properties or assets;
(qr) written 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 ownership, interest or right by any person Person other than the Company of any of the Company Material Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Property;
(rs) issuance issuance, grant, delivery, sale or salepurchase of, or contract proposal, Contract to issue issue, grant, deliver, sell or sellpurchase, by the Company Company, of (i) any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital Stock, or (ii) any other form of capital stock, or any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Company Option Plan;
(st) other than entering into (y) non-exclusive licenses and related agreements with respect thereto of the Company Products with a retail value (i.e. full price on Company’s standard price list) of less than $35,000 to end users pursuant to written agreements in the ordinary course of business that do not materially differ in substance from the Company’s standard form(s) including attachments (which are included in Section 3.14(k) of the Disclosure Schedule) or that, if different from the standard form, do not contain any terms that are materially less favorable to the Company than the corresponding term of the standard form, or (z) agreements relating solely to licensing of Shrink-Wrapped Code to the Company for its own use entered into in the ordinary course of business, consistent with past practice : (i) sale sale, lease, license or license transfer of any Company Intellectual Property or entering into 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 Person, or entity, (ii) purchase or license of any Intellectual Property or entering into execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entityPerson involving aggregate payments by the Company in excess of $150,000, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third partyparty involving aggregate payments by the Company in excess of $150,000, 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 Intellectual Property to the Company;
(tu) agreement a Company Material Adverse Effect;
(v) purchase or sale of any interest in 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;
(w) acquisition by the Company of, or agreement by the Company to agreement pursuant to which acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other party was granted marketingmanner, distributionany business or corporation, development partnership, association or similar rights 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;
(x) adoption or amendment of any type Company Employee Plan, or scope with respect execution or amendment of any Employee Agreement (other than execution of the Company standard at will offer letter);
(y) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company;
(z) any action to accelerate the vesting schedule of any products Company Options or technology Company Common Stock;
(aa) promotion, demotion or termination or other change to the employment status or title of any Current Employee;
(bb) alteration of any interest of the Company in a Subsidiary or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any ownership interest;
(cc) cancellation, amendment or renewal of any insurance policy of the Company;
(udd) hiring issuance or termination of employees of the Company;
(v) agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the knowledge Company in excess of $35,000 individually or $150,000 in the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Companyaggregate; or
(wee) 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 (vdd) of this Section 3.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Omniture, Inc.)
No Changes. Since September 30December 31, 20002015, and except as disclosed in the Disclosure 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 Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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) material 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 actionaction 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) change in any election in respect adoption of Taxes (as defined below), adoption or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any material Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect or filing of Taxesany amended material Tax Return;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including 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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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);
(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 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 personPerson;
(lm) 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 (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except those other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the ordinary course of business, consistent with past practice;
(mn) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including the sale of any Accounts Receivable, 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;
(no) loan by the Company to any person Person, or entity, incurring purchase by the Company of any indebtednessdebt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any 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 business, consistent with past practices;
(oq) 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;
(pr) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(qs) notice 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, or to the knowledge of the Company and any Stockholder, director or officer of the Company, ;
(t) notice of any claim or potential claim of ownership ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(ru) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital 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 options issued under the Plan;
(si) other than except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past practice (i) sale practices, sale, lease, license or license transfer to any Person of any Company Intellectual Property or entering into 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, (ii) purchase or license of any Intellectual Property Rights or entering into 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;
(tw) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the CompanyCompany Product;
(ux) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(y) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(wz) agreement by the Company 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 (vy) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Samples: Merger Agreement
No Changes. Since September 30, 2000the Balance Sheet Date, there has not been, occurred ---------- or arisen arisen, other than in connection with this Agreement and the Merger, any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Articles of Incorporation Charter Documents or Bylaws the organizational documents of the CompanySubsidiary;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge discharge, waiver or satisfaction, in any amount in excess of $10,000 5,000 in any one case, or $25,000 10,000 in the aggregate, of any claim, liability liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company or its Subsidiary), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected recorded 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 business customer of the Company or loss of any customer its Subsidiary (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 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 actionaction with respect to the Company or its Subsidiary;
(g) adoption 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 GAAPor its Subsidiary;
(h) adoption of or change in any material election in respect of Taxes (as defined below)Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of its assetstheir assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other any distribution (whether in cash, stock cash or property) in respect of any common stockCompany Units, or any split, combination or reclassification in respect of any shares of Company 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 Common StockUnits, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock Units (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Options Unvested Units, and distributions (ii) a cash distribution in an amount equal to Stockholders up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income tax purposes pursuant of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to Section 5.1(f)the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of its their officers, directorsemployees, employees consultants or advisors, or (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such personPerson, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its their assets are is bound, except those entered into in other than pursuant to the ordinary course Company’s Standard Form of businessAgency Agreement;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, 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 or its Subsidiary to any person Person, or entity, purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its 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 practices;
(op) waiver or release of any right or claim of the CompanyCompany or its Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or its Subsidiary;
(pq) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairsSubsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qr) 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 ownership, interest or right by any person Person other than the Company or its Subsidiary of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)or rights to music or other content;
(rs) issuance issuance, grant, delivery, sale or salepurchase, or proposal, contract or agreement to issue issue, grant, deliver, sell or sellpurchase, by the Company or its Subsidiary, of any shares of Company Common Stock, any other form of capital stock Units or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stockUnits, or any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing;
(st) other than in the ordinary course of business, consistent with past practice (i) sale sale, lease, license or license transfer of any Company Intellectual Property Content or entering into execution, modification or amendment of any agreement with respect to the Company Intellectual Property Content with any person Person, or entity or with respect to the Intellectual Property of any person or entity, (ii) purchase or license of any Intellectual Property music or entering into other content or execution, modification or amendment of any agreement with respect to the Intellectual Property music or other content of any person or entityPerson, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third partyChannel Outlet, or (iv) change in pricing or royalties set or charged by the Company to or its customers Subsidiary for the license, purchase or licensees use of the Content or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property conveyed Content to the Company;
(t) agreement Company or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
its Subsidiary; (u) hiring event or termination condition of employees of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the Companydigital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 knowledge business of the Stockholders, event Company or condition its Subsidiary;
(x) execution of any type that has had strategic alliance, affiliate or is reasonably likely joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to have a Material Adverse Effect on accelerate the Companyvesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(wbb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (vaa) of this Section 2.10 (other than negotiations with Parent Purchaser and its the Members and their representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
No Changes. Since September 30Except as expressly contemplated by this Agreement, 2000or other than as set forth in Section 2.11 of the Disclosure Schedule, 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 amendment or changes change to the Articles Charter Documents;
(c) amendment of Incorporation or Bylaws any term of any outstanding security of the Company;
(cd) capital expenditure expenditure, transaction or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 150,000 in the aggregateaggregate with respect to any single Person;
(de) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $10,000 5,000 in any one case, or $25,000 in the aggregate, case of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges, waivers or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ef) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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);
(fg) material employment dispute, including 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 actionaction with respect to the Company;
(gh) 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;
(hi) change in any material election in respect of Taxes (as defined belowin Section 2.13(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ij) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(jk) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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);
(kl) increase in or other change to the salary or other compensation payable or to become payable by the Company to any of its 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;
(lm) 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 (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets or material properties of the Company or any creation of any security interest in such material assets or material properties, except for Company Intellectual Property licensed than in the ordinary course of business;
(n) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company, 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, other than non-exclusive licenses of the Company Products by the Company in the ordinary course of business;
(o) loan by the Company to any person Person, purchase by the Company of any debt securities of any Person, or entitycapital contributions to investment in any Person;
(p) creation or other incurrence by the Company of any Lien on any of its asset, except for Liens for Taxes not yet due and payable;
(q) 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 practicespractices and not in excess of $10,000 in the aggregate;
(or) 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, other than in the ordinary course of business;
(ps) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, written threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qt) 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 ownership, interest or right by any person other than the Company of in or to the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below);
(ru) issuance issuance, grant, delivery or sale, or contract or agreement to issue issue, grant, deliver or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(sv) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into execution of any agreement with respect to the Company Intellectual Property with any person or entity or with respect Person, except pursuant to the Intellectual Property of any person Company’s End User Agreements substantially on standard terms and conditions, or entity, (ii) purchase or license of any Intellectual Property or entering into execution of any agreement with respect to the Intellectual Property of any person or entityPerson, (iii) agreement with respect to the development of any Intellectual Property with a third party, or (iv) material 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 who have licensed Intellectual Property to the Company or any of its Subsidiaries, except in the case of clause (i) or (ii), pursuant to the Company’s End User Agreement, substantially on standard terms and conditions;
(tw) agreement or modification to agreement any Contract pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(ux) hiring event, occurrence, development, state of circumstances, facts, or termination condition of employees any character that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(y) any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreement (as defined in Section 2.15(b));
(z) acquisition or agreement 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;
(vaa) grant of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the knowledge of the StockholdersDisclosure Schedule;
(bb) cancellation, event amendment or condition renewal of any type that has had insurance policy;
(cc) lease, license, sublease or is reasonably likely to have a Material Adverse Effect on other occupancy of any Leased Real Property (as defined in Section 2.15(a)) by the Company; or
(wdd) agreement by the Company 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 (vcc) of this Section 2.11 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreement).
Appears in 1 contract
Samples: Merger Agreement (Altiris Inc)
No Changes. Since September 30December 31, 20002015, and except as disclosed in the Disclosure 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 Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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) material 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 actionaction 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) change in any election in respect adoption of Taxes (as defined below), adoption or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any material Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect or filing of Taxesany amended material Tax Return;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including 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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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) (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 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 personPerson;
(lm) 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 (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except those other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the ordinary course of business, consistent with past practice;
(mn) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including the sale of any Accounts Receivable, 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;
(no) loan by the Company to any person Person, or entity, incurring purchase by the Company of any indebtednessdebt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any 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 business, consistent with past practices;
(oq) 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;
(pr) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(qs) notice 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, or to the knowledge of the Company and any Stockholder, director or officer of the Company, ;
(t) notice of any claim or potential claim of ownership ownership, interest or right by any person Person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(ru) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital 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 options issued under the Plan;
(si) other than except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past practice (i) sale practices, sale, lease, license or license transfer to any Person of any Company Intellectual Property or entering into 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, (ii) purchase or license of any Intellectual Property Rights or entering into 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;
(tw) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the CompanyCompany Product;
(ux) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(y) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(wz) agreement by the Company 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 (vy) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30the Balance Sheet Date, 2000except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof or as set forth in Section 2.9 of the Disclosure Schedule, 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 Articles of Incorporation or Bylaws of the CompanyCharter Documents except as expressly contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ed) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or loss of a 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);
(fe) employment dispute, including claims or matters raised by any 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 actionaction by the Company;
(gf) adoption of 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) change in any election in respect making of Taxes (as defined below), adoption or change in any Tax election, adoption of or change in any Tax accounting method method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assets;
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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)or restricted stock awards granted under the Plans;
(ki) increase in the salary (i) termination or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisorsextension, or the declarationmaterial amendment, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment waiver or modification of the terms terms, of any agreementMaterial Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, contractwith the giving of notice or the passage of time or both, covenant, instrumentcould constitute such a breach or default;
(j) sale, lease, sublease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company Company, 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 material properties, except for properties other than non-exclusive licenses of the Company Intellectual Property licensed Products (as defined below) to 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 (as defined below);
(nk) loan by the Company to any person or entityPerson, incurring by the Company of any indebtednessIndebtedness 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 practices;
(ol) 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;
(pm) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(rn) issuance or sale, or contract Contract or undertaking to issue or sell, by the Company of (i) any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital Stock, any other form of capital stock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing;
(so) receipt by the Company of written notice of any claim or potential claim of ownership by any Person other than in the ordinary course Company of business, consistent with past practice Company IP (as defined below) or of infringement by the Company of any other Person’s Intellectual Property Rights (as defined below);
(p) (i) sale or license of any Company Intellectual Property IP or entering into Company Products or execution of any agreement with respect to the Company Intellectual Property IP or Company Products with any person or entity or Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with respect to past practices that do not materially differ in substance from the Intellectual Property of any person or entityStandard Form Agreements), (ii) purchase or license of any Intellectual Property Rights or entering into Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any person or entityPerson (other than Shrink‑Wrap), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology 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 Intellectual Property Rights or Technology to the CompanyCompany (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(tq) agreement hiring or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights termination of any type employee of the Company, promotion, demotion or scope with respect other change to the employment status or title of any products office of the Company or technology resignation or removal of any director of the Company;
(ur) hiring (i) increase in or 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 Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a 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 employees any Company Employee 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 knowledge post‑termination exercise period of the Stockholdersany Company Options or any similar equity awards;
(t) circumstance, change, event or condition effect of any type character that has had or is reasonably likely to have a Material Adverse Effect on with respect to the Company; or
(wu) agreement by the Company 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 (vt) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
No Changes. Since September 30Except in compliance with this Agreement, 2000since the Current Balance Sheet Date (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 Articles certificate of Incorporation incorporation or Bylaws bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 75,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 25,000 in any one case, or $25,000 50,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against obligations set forth in the Current Balance SheetSheet or Disclosure Schedule;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or material business 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 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 actionaction 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 or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible);
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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)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 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;
(l) any 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 (including intangible assetswhether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company Company, 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, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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;
(p) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 belowSECTION 2.13 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 belowSECTION 2.13 hereof);
(r) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital 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 Capital Stock upon the exercise of options issued under the Plans or upon the exercise of Company Warrants;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into 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) purchase or license of any Intellectual Property or entering into 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;
(t) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products 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 type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(v) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(w) agreement or commitment by the Company 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 (v) of this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
No Changes. Since September 30Except as provided in Section 2.10 of the Disclosure Schedule, 2000since the Balance Sheet Date 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 the Balance Sheet Date;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the Company;
(c) third party capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payment(i) payments, discharge discharges or satisfaction satisfactions in the ordinary course of business business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance SheetSheet or (ii) incurred in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or material business of the Company intangible), or loss of any material 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) claims 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 actionaction 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) change in any election in respect adoption of Taxes (as defined below), adoption or change in any Tax (as defined in Section 2.11) election or any Tax accounting method in method, entering into any closing agreement with respect of to Taxes, agreement settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) material revaluation by the Company of any of its assetsassets (whether tangible or intangible), including 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 common stockCompany Common Stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or options options, warrants 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 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;
(l) any agreemententry into a Material Contract, contracttermination or extension of a Material Contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, a material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessMaterial Contract;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including 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, incurring or purchase by the Company of any indebtednessdebt 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) incurrence by the Company of any indebtedness 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 practices;
(op) 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;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingCompany;
(qr) 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 ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 3.12 below2.14 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's ’s Intellectual Property Rights (as defined in Section 3.12 below2.14 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, 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 options issued under the Plan;
(st) of the following, other than in connection with agreements entered into in the ordinary course of business, consistent with past practice practice, on the Company’s standard form without material modification: (i) sale or license of any Company Intellectual Property to, or entering into 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, (ii) purchase or license of any third-party Intellectual Property Rights from, or entering into 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, 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;
(tu) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the CompanyCompany Product;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(wx) 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 (vw) of this Section 2.10 (other than negotiations with Parent the execution of this Agreement and its representatives regarding the transactions contemplated by this AgreementRelated Agreements to which the Company is a party).
Appears in 1 contract
No Changes. Since September 30, 2000the date of the Current Balance Sheet, there has not been, occurred ---------- or arisen any:
(a) commitment or 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) amendments amendment or changes change to the Articles of Incorporation Incorporation, Bylaws or Bylaws other organizational documents, as the case may be, of the CompanyCompany or any of its Subsidiaries;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 change in the aggregateCompany’s or any of its Subsidiaries authorized capital structure;
(d) capital expenditures, lease commitments or capital commitments by the Company or any of its Subsidiaries, either individually exceeding $100,000 or in the aggregate exceeding $200,000;
(e) payment, discharge or satisfactionsatisfaction by the Company or any of its Subsidiaries, in any amount in excess of $10,000 100,000 in any one case, case or $25,000 200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction (i) of any Borrowed Money Indebtedness, or (ii) in the ordinary course of business of other liabilities reflected or reserved against in the Current Balance Sheet, or arising thereafter in the ordinary course of business;
(ef) destruction of, damage to or loss of any material assets or material business of the Company or loss of any customer Assets (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) labor trouble or claim , in excess of wrongful discharge or other unlawful labor practice or action$200,000 in the aggregate;
(g) revaluation by the Company or any of its Subsidiaries of any of their respective Assets;
(h) change, event or effect that has had a Material Adverse Effect on the Company or any of its Subsidiaries;
(i) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by or any of its Subsidiaries, including, but not limited to, any change made in accordance with GAAP;
(hj) change in any election in material with respect of Taxes (as defined below)to Taxes, adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes, or material amendment or change of any Return;
(i) revaluation by the Company of any of its assets;
(jk) declaration, setting aside or payment of a dividend or other distribution (whether with respect to the shares in cash, stock or property) in respect the capital of any common stockthe Company, or any split, combination or reclassification in respect of any shares in the capital of Company Common Stockthe Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares in the capital of Company Common Stockthe Company, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company of any shares in the capital of the Company Common Stock (or options options, warrants 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)Share Option Plan;
(kl) increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its officers, directors, directors or employees or advisors, (other than increases in the ordinary course of business for employees who are not executive officers) or the declaration, payment or commitment or obligation of any kind for the payment payment, by the Company or any of its Subsidiaries, of a severance payment, termination payment, change in control payment, bonus or other additional salary or compensation to any such personPerson except as otherwise contemplated by this Agreement;
(lm) any agreement, contract, covenant, instrument, lease, license or commitment to which termination by the Company is party or (other than expiration in accordance with its terms), extension by which it or any of the Company (other than renewal in accordance with its assets (including intangible assets) are bound or any terminationterms), extension, material amendment or material modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which Contract set forth on the Company is party or by which it or any of its assets are bound, except those entered into Disclosure Schedules other than in the ordinary course of businessbusiness consistent with past practices;
(mn) sale, lease lease, assignment, license or other disposition of any of the material assets or material properties Assets 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, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses its Subsidiaries other than in the ordinary course of business consistent with past practices;
(o) loan by the Company or any of its Subsidiaries to or capital investment in any Person, incurring by the Company or any of its Subsidiaries of any indebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiaries of any indebtedness for borrowed money of others, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others;
(p) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the Company;
(p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingits Subsidiaries;
(q) notice to the Company, commencement or to the knowledge of the Company and any Stockholder, director or officer of the Company, settlement of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created lawsuit by the Company or any of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below)its Subsidiaries;
(r) issuance or sale, or contract or agreement to issue or sell, by the Company or any of its Subsidiaries of any of shares in the capital of the Company or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except for, in the case of the Company, issuances or sales of shares in the capital of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares upon the exercise of Company Common Stock, any other form of capital stock, Share Options or any securities, warrants, options or rights to purchase any Company Warrants outstanding as of the foregoingdate of this Agreement;
(s) other than transfer or license to or from any Person any Intellectual Property Rights (including any Company Intellectual Property) or entry into or amendment of any agreement with any Person regarding any Intellectual Property Rights (including any Company Intellectual Property), except in the ordinary course of business, business consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement with respect to the development of any Intellectual Property with a third partyparty or amendment of any such agreement except in the ordinary course of business consistent with past practice, or (iviii) 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 who have licensed Intellectual Property or Intellectual Property Rights to the CompanyCompany or any of its Subsidiaries;
(t) agreement or modification to any material agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology services of the CompanyCompany or any of its Subsidiaries or Company Intellectual Property;
(u) hiring failure to pay or termination of employees of the Company;
(v) to the knowledge of the Stockholdersotherwise satisfy its monetary obligations as they become due, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Companyexcept such as are being contested in good faith; or
(wv) agreement by the Company or any of its Subsidiaries or any officer or employees employee on behalf of the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreementu).
Appears in 1 contract
Samples: Transaction Agreement (Avocent Corp)
No Changes. Since September 30From the date of the Current Balance Sheet through the date hereof, 2000(i) the Company has operated its business in the Ordinary Course of Business, (ii) no Company Material Adverse Effect has occurred and (iii) there has not been, occurred ---------- or arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practicesagreement or arrangement to enter into any Contract involving a strategic alliance, joint development or joint marketing arrangement;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyCharter Documents;
(c) capital expenditure or capital expenditure commitment by the Company to make capital expenditures in each case exceeding $10,000 75,000 individually or $25,000 750,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, of any claim, liability material Liability (whether fixed or obligation (absolute, accrued, asserted absolute or unassertedcontingent, contingent matured or unmatured, determined or determinable, known or unknown, or otherwise), other than payment, discharge or satisfaction in the ordinary course Ordinary Course of business of liabilities reflected or reserved against in the Current Balance SheetBusiness;
(e) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or Significant 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) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) change in accounting methods policies or practices procedures (including any change in revenue recognition, reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or rates) by the Company other than any audit-related adjustments that Company has implemented or as required by GAAP;
(hg) change in any election in respect of Taxes (as defined below)material Tax election, adoption or change in of any Tax accounting method method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement in respect of Taxes, agreement settlement or settlement compromise of any material Tax claim or assessment in respect of Taxesassessment, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment in respect of Taxesassessment;
(ih) revaluation by the Company of any of its assetsassets (whether tangible or intangible), other than any audit-related adjustments that the Company has implemented or as required by GAAP;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options, Company RSUs and Company Warrants, and except for awards of Company Options and distributions to Stockholders for income tax purposes pursuant to Company RSUs set forth on Section 5.1(f)3.2(b)(ii) of the Company Disclosure Letter;
(kj) increase in the salary or other compensation payable or to become payable by the Company to any of its officerscurrent Employees (other than increases made in the Ordinary Course of Business with respect to employees with a base salary, directorsfollowing such increase, employees or advisorsof less than $150,000), or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, change in control payment, termination payment, bonus or other additional salary or compensation to any such personPerson;
(k) hiring or termination of any Employee earning more than $150,000 per year, 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) any agreementtermination or, contract, covenant, instrument, lease, license or commitment to which other than in the Company is party or by which it or any Ordinary Course of its assets (including intangible assets) are bound or any terminationBusiness, extension, amendment amendment, waiver or modification of the terms terms, of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessMaterial Contract;
(m) action to accelerate the vesting schedule of any Company Options, Company Warrants or Unvested Company Common Stock;
(n) except in the Ordinary Course of Business, any sale, lease lease, sublease or other disposition of any of the material assets or material properties Assets and Properties of the Company Company, including the sale of any accounts receivable of the Company, or any creation of any security interest Lien (other than Permitted Liens) in such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(no) loan by the Company to any person or entityPerson (except for reasonable advances to current employees for travel and business expenses in the Ordinary Course of Business), incurring by the Company of any indebtednessIndebtedness for money borrowed, guaranteeing guarantee by the Company of any indebtednessIndebtedness for money borrowed, issuance or sale of any debt securities of the Company or guaranteeing guarantee of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(op) waiver or release of any right or claim of the Companyclaim, including any write-off write off, discount or other compromise of any material account receivable of the Companyreceivable;
(pq) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders’s Knowledge, threat of of, any lawsuit or proceeding or other investigation (to the Company’s Knowledge) against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qr) written 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 by any person Person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Rights;
(rs) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital 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 Options and or Company Capital Stock upon the exercise of Company Options, Company RSUs or Company Warrants or the conversion of the Company Preferred Stock;
(st) other than in the ordinary course of business, consistent with past practice (i) sale or license of any material Company Intellectual Property Rights, or 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, (ii) purchase or license of any Intellectual Property or entering into Rights (other than the assignment of any agreement with respect to the Intellectual Property of any person or entityRights in connection with development for the Company performed by a third Person), (iii) agreement with respect to the development of any Intellectual Property Rights with a third partyparty outside the Ordinary Course of Business, 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 Rights to the Company;
(t) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights Company outside the Ordinary Course of any type or scope with respect to any products or technology of the Company;Business; or
(u) hiring binding written or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(w) oral agreement by the Company Company, or any officer or employees employee on behalf of the Company Company, to do any of the things described in the preceding clauses (a) through (v) t), inclusive, of this Section 3.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Lsi Corp)
No Changes. Since September 30the Balance Sheet Date, 2000except 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 modifications, amendments or changes to the Company except in the ordinary course of business consistent with past practicesCharter Documents;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge discharge, waiver or satisfaction, in any amount in excess of $10,000 50,000 in any one case, or $25,000 100,000 in the aggregate, of any claim, liability liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of or 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 to, or loss of any material assets (whether tangible or material business intangible) of the Company or loss any of any customer its Subsidiaries (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)) or the loss of any material customer;
(e) material employment dispute, including claims or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) labor trouble adoption or claim of wrongful discharge or other unlawful labor practice or action;
(g) 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 election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, or any agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible), including 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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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);
(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 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 equity 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 personof 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 Specified Bonuses or Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time;
(lk) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment 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;
(l) sale, except those entered into lease, license or other disposition of any material assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries (other than in the ordinary course of business;
(m) sale), lease or other disposition including the sale of any of the material assets or material properties accounts receivable of the Company or any of its Subsidiaries, 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;
(nm) loan by the Company or any of its Subsidiaries to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, 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;
(n) incurring by the Company or any of its Subsidiaries of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtedness, or the issuance or sale of any debt securities of the Company or any of its Subsidiaries;
(o) 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;
(p) the commencementissuance, settlementgrant, notice ordelivery, to the Knowledge of the Companysale or purchase of, or Stockholdersproposal or Contract to issue, threat of any lawsuit grant, deliver, sell or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) notice to the Company, or to the knowledge of the Company and any Stockholder, director or officer of purchase by the Company, of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 belowi) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital Stock, or (ii) any other form of capital stock, or any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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;
(tr) agreement or modification to agreement any Contract pursuant to which any other party is or was granted marketing, distribution, development development, delivery, manufacturing or similar rights of any type or scope with respect to any products Company Products or technology Company Intellectual Property Assets, other than any Contract that is disclosed in Section 3.13(a) of the CompanyDisclosure Schedule;
(s) a Company Material Adverse Effect;
(t) 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) hiring acquisition by the Company or termination any of employees 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 required by applicable Law;
(w) increase in the rights to indemnification of any Employees;
(x) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the knowledge 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 Stockholders, event Company standard at will offer letter (or condition any standard employment agreement of any type that Subsidiary as required by Law), the form of which has had 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 is reasonably likely joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(aa) any action to have a Material Adverse Effect on accelerate the Companyvesting 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
(wff) agreement by the 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 (vee) of this Section 3.8 (other than negotiations and agreements with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
No Changes. Since September 30Except as contemplated by this Agreement or as set forth in Section 2.9 of the Company Disclosure Schedule, 2000since the Balance Sheet Date, there has not been, occurred ---------- or arisen any:
(a) transaction by the Company with payments to be made by or to the Company in excess of $25,000 individually or $50,000 in the aggregate except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or the Organizational Documents of any of its Subsidiaries;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $25,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, material damage to to, or material loss of any material assets (whether tangible or intangible), or material business 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), and the Company has not received written notice (and the Company Officer Group has not received oral notice) from any material customer that it will stop or materially decrease its business with the Company;
(fe) employment dispute, including 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 actionaction 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 GAAP;
(hg) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes receivable;
(i) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, 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;
(j) adoption or amendment to any Company Employee Plan, except as required by applicable law;
(k) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity;
(l) payment, discharge, waiver or satisfaction by the Company, in an amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business;
(m) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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)Options;
(kn) increase in the salary waiver or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment release by the Company of a severance paymentany right or claim of the Company or Subsidiary, termination payment, bonus including any write-off or other additional salary compromise of any account receivable of the Company or compensation to Subsidiary in excess of any such personestablished reserves for accounts receivable in the Current Balance Sheet;
(lo) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any expenditure of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into cash other than in the ordinary course of business;
(mp) sale, lease or other disposition of any of the material assets or material properties 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, 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 consistent with past practices;
(o) 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;
(p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(q) 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 by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into 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 entityentity other than the granting of object code licenses in conjunction with the sale of the Company's products in the ordinary course of the Company's business and consistent with past practice, or (ii) purchase or license of any Intellectual Property or entering into execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, except 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, 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 who have licensed Intellectual Property to the Company;
(tr) receipt by the Company of written notice (or receipt of oral notice by the Company Officer Group) 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 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;
(s) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(ut) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(u) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(wv) agreement by the Company Company, or any officer or employees on behalf of the Company , to do any of the things described in the preceding clauses (a) through (vu) of this Section 2.9 (other than negotiations with Parent the Buyer and its representatives regarding the transactions contemplated by this AgreementContemplated Transactions).
Appears in 1 contract
No Changes. Since September 30, 2000Between the date of the Current Balance Sheet and the date of this Agreement, there has not been, occurred ---------- or arisen any:
(a) material transaction by the Company or its Subsidiaries, except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or any of its Subsidiaries, except as expressly contemplated by this Agreement;
(c) capital expenditure or capital expenditure commitment by the Company or its Subsidiaries exceeding $10,000 5,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 5,000 in any one case, or $25,000 in the aggregate, of any claim, liability or obligation (absolute, whether fixed or accrued, asserted absolute or unassertedcontingent, contingent matured or unmatured, determined or determinable or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected on or reserved against in the Current Balance Sheet and current liabilities incurred since the Current Balance Sheet;
(e) destruction of, damage to or loss of any material assets or material business 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) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or rates) by the Company or its Subsidiaries other than as required by GAAP;
(hf) change in any material election in respect of Taxes (as defined below)Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ig) revaluation by the Company or its Subsidiaries of any of its assetsassets (whether tangible or intangible);
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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)or the issuance of Unvested Company Common Stock;
(ki) material increase in the salary or other compensation payable or to become payable by the Company or its Subsidiaries to any of its their officers, directors, employees directors or advisors, Employees or the declaration, payment or commitment or obligation of any kind for the payment by the Company or its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such personPerson (except pursuant to the Company’s pre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(lj) any agreementtermination or extension, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any terminationamendment, extension, amendment waiver or modification of the terms terms, of any agreement, contract, covenant, instrument, lease, license or commitment Contract required to which be disclosed in Section 3.14 of the Company is party or by which it or any Disclosure Schedule (other than terminations in connection with the scheduled end of its assets are bound, the term of such Contract);
(k) except those entered into in the ordinary course of business;
(m) business consistent with past practices, sale, lease lease, sublease, license or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company or its Subsidiaries, including the sale of any accounts receivable of the Company or its Subsidiaries, or any creation of any security interest Lien (other than Permitted Liens) in such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(nl) loan by the Company or its Subsidiaries to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), incurring by the Company or its Subsidiaries of any indebtedness for money borrowed, guaranteeing by the Company or its Subsidiaries of any indebtedness for money borrowed, issuance or sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of others, except for trade payables and advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practices;
(om) waiver or release of any material right or claim of the Companyclaim, including any write-off off, discount or other compromise of any account receivable of the CompanyCompany or its Subsidiaries, other than write-offs of accounts receivable in the ordinary course of business consistent with past practices;
(pn) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingSubsidiaries;
(qo) 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 by any person Person other than the Company or its Subsidiaries of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or its Subsidiaries or of infringement by the Company or its Subsidiaries of any other person's Person’s Intellectual Property (as defined in Section 3.12 below)Rights;
(rp) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into execution of any agreement with respect to the Company Intellectual Property with any person Person, other than in the ordinary course of business, or entity or with respect to the Intellectual Property of any person or entity, (ii) purchase or license of any Intellectual Property Rights or entering into execution of any agreement with respect to the Intellectual Property Rights of any person or entityPerson (other than the Company), other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement with respect to the development of any 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 Rights to the Company;
(tq) agreement or modification to agreement pursuant to which any other party was granted marketingcircumstance, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholderschange, event or condition effect of any type character that has had is or is reasonably likely to have a Material Adverse Effect on be material and adversely affect the Company; or
(wr) written or oral agreement by the Company or its Subsidiaries, or any officer or employees employee on behalf of the Company or its Subsidiaries, to do any of the things described in the preceding clauses (a) through (v) q), inclusive, of this Section 3.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Since September 30the Balance Sheet Date, 2000except 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 Articles certificate of Incorporation incorporation or Bylaws bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $25,000 50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 25,000 in any one case, or $25,000 50,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities 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 to, or loss of any material assets (whether tangible or intangible), material business or material business 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 actionaction 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 election in respect adoption of Taxes (as defined below), adoption or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method in respect of Taxesmethod, agreement entry into any closing agreement, settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company of any of its assetsmaterial 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 common stockCompany Capital Stock, or any split, combination or reclassification in respect of any shares of Company Common 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 Common Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Capital Stock (or options options, warrants 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;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the ordinary course of businessMaterial Contract;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or material 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 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 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 practices;
(op) 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;
(pq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any 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;
(qr) 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 ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below2.13 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 3.12 below2.13 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Capital Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(si) other than except standard end user licenses entered into in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or entering into 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 entering into 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;
(tu) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development development, manufacturing or similar rights of any type or scope with respect to any products 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 type character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(wx) agreement by the Company 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 (vw) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Since September 30Except as set forth on Schedule 2.9, 2000, since the date of the Latest Balance Sheet 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 Articles organizational documents of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one caseindividually, or $25,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assets assets, material business or material business 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) strike, work stoppage, organizational activities, labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(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)Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, shares, stock or property) in respect of any common stockCompany Common Stock, or any split, combination or reclassification in respect of any shares of Company 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 Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock (or options options, warrants 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(ftherefore);
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its their officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, parachute or employment continuation payment, bonus or other additional salary or compensation to any such person, except (i) as required by law, (ii) pursuant to requirements of pre-existing Contracts, all of which are set forth on Schedule 2.9(k), or (iii) in the ordinary course;
(l) any agreement, contract, covenant, instrument, lease, license except for grants of non-exclusive licenses to Company Intellectual Property or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into other licenses granted in the ordinary course of business, all consistent with past practices, granted any licenses;
(m) except as set forth herein, sale, lease lease, license or other disposition of any of the material assets or material properties 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 entityPerson, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) waiver or release of any right or claim of Company with respect to the Company’s assets, including any write-off or other compromise of any account receivable of the Company;
(p) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, Company threat of any lawsuit or proceeding or other investigation against Company (with respect to the Company Assets) or its their affairs, or any reasonable basis for any of the foregoing;
(q) receipt of written notice to the Companyof, or to the knowledge of the Company and any StockholderKnowledge of, director or officer of the Company, of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company Company, or of infringement by the Company of any other person's ’s or entity’s Intellectual Property (as defined in Section 3.12 below)Property;
(r) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Common Stock, any other form of capital stock Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, any other form of capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) other than in the ordinary course of business, consistent with past practice (i) sale or license of any Company Intellectual Property or 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, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) 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 except for rights granted to the Company;
(t) ’s customers to use and/or modify deliverables , entered into any agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(ut) hiring or termination of employees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any type that has had or is reasonably likely to have a Material Adverse Effect on the Companyoccurs; or
(wu) agreement by the Company Company, or any officer or employees on behalf of the Company to do any of the things described in the preceding clauses (a) through (vt) of this Section 2.9 (other than negotiations with Parent Buyer and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Ants Software Inc)