No Changes. Since December 31, 2002, there has not been, occurred or arisen any: (a) transaction by the Company except in the ordinary course of business consistent with past practice; (b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 or loss of any material customer of the Company (whether or not covered by insurance); (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 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 share of Company capital stock, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share of Company capital stock (or options or other rights convertible into, exercisable or exchangeable therefor); (k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person; (l) 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 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; (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; (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 practice that are set forth on Section 2.9(n) of the Disclosure Schedule; (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 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below); (r) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing; (s) any (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) event or condition of any character 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 (Xicor Inc)
No Changes. Since December 31, 2002the date of the Interim Financial Statements, there has or have not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary, which is material to the Company or such Subsidiary, except in the ordinary course of business and consistent with past practicepractices;
(b) amendments or changes to the Certificate of Incorporation Company Constitution or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or capital expenditure commitment by the Company or any Subsidiary exceeding $10,000 5,000 individually or $25,000 15,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 15,000 in the aggregate, of any claim, liability Liability or obligation (absolute, accrued, asserted or asserted, unasserted, contingent or otherwise), other than payment, discharge or satisfaction of claims, liabilities and obligations in the ordinary course of business or of liabilities Liabilities reflected or reserved against in the Current Balance SheetFinancial Statements;
(e) destruction of, damage to to, or loss of any material assets with a book value in excess of $5,000 (whether tangible or material business or loss of any material customer intangible) of the Company (or any Subsidiary, whether or not covered by insurance);
(f) labor trouble actual, pending or claim threatened claims by or on behalf of wrongful discharge Company Personnel, including any claims relating to termination of employment, workers compensation, illness, negligence, discrimination, bullying, sexual harassment, wage, salary or other unlawful labor practice or actionsuperannuation claims;
(g) material 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 GAAPor any Subsidiary, or change in the manner the Company or any Subsidiary keeps its books and records, or its practices with regard to the booking of sales, receivables, payables or accrued expenses or change in its payment or collection practices;
(h) change in any material election in respect of Taxes (as defined below)Taxes, adoption or change in any material accounting method in respect of Taxes, material 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 any Subsidiary of any of its assetstheir respective 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefortherefor except as contemplated by this Agreement);
(k) destruction of, damage to, or loss of any assets (whether tangible or intangible) of the Company or any Subsidiary with a book value in excess of $5,000 in any one case or $15,000 in the aggregate, whether or not covered by insurance;
(l) an increase in the base salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company or any Subsidiary to any of its officers, directors, employees or advisorsCompany Personnel, or the declarationpromise, payment or payment, commitment or obligation of any kind for the payment by the Company or any Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such personPerson;
(lm) agreement, contract, covenant, instrument, lease, license or commitment entering into of any material Contract to which the Company or any Subsidiary is a party or by which it they or any of its their respective assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment material Contract to which the Company or any Subsidiary is a party or by which it or any of its assets are bound;
(mn) sale, lease lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any Subsidiary, including the sale of any accounts receivable, or any creation of any security interest in any such material assets or material properties;
(no) any outstanding loan by the Company or any Subsidiary to any person or entityPerson, incurring by the Company or any Subsidiary of any indebtednessIndebtedness, guaranteeing by the Company or any Subsidiary of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any Subsidiary 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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulebusiness;
(op) the granting of any waiver or release by the Company or any Subsidiary of any right or claim of material to the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary;
(pq) the commencement, settlement, notice or, to the Knowledge of the Company, any Subsidiary or threat the Stockholders, threat, of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoingSubsidiary;
(qr) notice to the Company or its directors of any claim or potential claim of ownership by any person Person other than the Company or any Subsidiary of the Company Intellectual Property (as defined in Section 2.13 below) owned by or owned, developed or created by the Company or any Subsidiary, or of any claim or potential claim of infringement by the Company or any Subsidiary of any other person's Person’s Intellectual Property (as defined in Section 2.13 below)Property;
(rs) issuance or sale, or contract to issue or sell, by the Company or any Subsidiary of any capital shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(st) any (i) sale or license by the Company or any Subsidiary of any Company Intellectual Property or entering into execution of any agreement with respect to the any Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity; Property, (ii) purchase or license by the Company or any Subsidiary of any Intellectual Property or entering into execution of any agreement with respect to the Intellectual Property of any person or entityPerson, (iii) agreement by the Company or any Subsidiary 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 Subsidiary to its customers or licensees or in pricing or royalties set or charged by persons Persons who have licensed Intellectual Property to the Company or any Subsidiary, 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 and on the Company’s or the applicable Subsidiary’s standard terms and conditions;
(tu) agreement or material modification to any agreement 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 of employees of the Companyany Subsidiary;
(v) any event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on the CompanyEffect; or
(w) agreement by the Company or any officer Subsidiary, or employees any officer, employee on behalf of the Company or any Subsidiary, 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 of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Since December 31, 2002Between 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 practicepractices;
(b) amendments or changes to the Certificate articles 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 50,000 individually or $25,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(f) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) material 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(ki) material increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such personPerson (except pursuant to the Company’s pre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(lj) agreementany termination or extension, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound or any terminationamendment, extension, amendment waiver or modification of the terms terms, of any agreementContract required to be disclosed in Section 3.14 of the Company Disclosure Schedule (other than terminations in connection with the scheduled end of the term of such Contract);
(k) except in the ordinary course of business consistent with past practices, contract, covenant, instrumentsale, lease, sublease, license or commitment to which the Company is party or by which it or any of its assets are bound;
(m) sale, lease 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;
(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 practice that are set forth on Section 2.9(n) 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 Disclosure ScheduleCompany 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 or, to the Knowledge of the Company, 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 its directors 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 2.13 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 Rights; (as defined in Section 2.13 below);
(rp) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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;
(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) event or condition of any character 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 December 31From April 30, 2002, 2000 there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practicepractices;
(b) amendments or changes to the Certificate 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 $25,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(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 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 share of Company capital stockCommon Stock or Company Preferred Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon 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 any share shares of Company capital stockCommon Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock 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;
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such personperson other than normal cost-of-living and normal merit increases of not more than 5% per annum in the ordinary course of business consistent with past practices;
(l) other than (x) non-exclusive licenses of object code relating to the sale of the Company's currently shipping products entered into in the ordinary course of business consistent with past practice and (y) any other contract not involving the license, purchase or sale of Intellectual Property or Intellectual Property Rights (each as defined in Section 2.12 hereof) entered into in the ordinary course of business consistent with past practice involving an amount not in excess of $25,000 individually or $100,000 in the aggregate, 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 or any of its assets are bound;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 the Principal Shareholders, 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below2.12 hereof);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stockshares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise thereof;
(s) any except for the granting of non-exclusive licenses of object code relating to the sale of the Company's currently shipping products entered into 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; , or (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) any hiring or termination of employees of the Company, except in the ordinary course of business consistent with past practices or pursuant to existing employment agreements;
(v) any event or condition of any character 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) of this Section 2.8 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lsi Logic Corp)
No Changes. Since December 31Except as provided in Section 2.10 of the Disclosure Schedule, 2002since 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 practicepractices, as conducted on the Balance Sheet Date;
(b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 intangible), or loss of any material customer of the Company (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) 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;
(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 share of Company capital stockCommon Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Common Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(l) 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 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 boundMaterial 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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 or, to the Knowledge of the Company, 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 its directors 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 2.13 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 2.13 below2.14 hereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any capital stockshares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of options under the Plan and issuances of Company Common Stock upon the exercise of options issued under the Plan;
(st) any of the following, other than in connection with agreements entered into in the ordinary course of business, consistent with past practice, on the Company’s standard form without material modification: (i) sale or license of any Company Intellectual Property to, or 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) event or condition of any 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 December March 31, 2002, except as specifically permitted by any other provision of this Agreement, there has not been, occurred or arisen any:
(a) transaction by amendments or changes to the certificate of incorporation or bylaws of the Company except in or any of the ordinary course of business consistent with past practiceCompany Subsidiaries;
(b) amendments or changes to the Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company or any Company Subsidiary exceeding $10,000 25,000 individually or $25,000 250,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 250,000 in the aggregate, of any liability, indebtedness, obligation, expense, claim, liability deficiency, guaranty or obligation (endorsement of any type, whether accrued, absolute, accruedcontingent, asserted matured or unasserted, contingent or otherwiseunmatured (a "Liability"), other than payment, discharge or satisfaction in the ordinary course of business 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 loss of any material customer of the Company or any Company Subsidiary (whether or not covered by insurance);
(fe) 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 or any Company Subsidiary other than as required by GAAP;
(hf) (i) change in any material election in respect of Taxes (as defined below), (ii) adoption or change in any accounting method in respect of Taxes, (iii) agreement or settlement of any claim or assessment in respect of Taxes, or (iv) extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; provided, however, the preceding subclauses (iii) and (iv) shall apply only to a material amount of Taxes to the extent that Siemens Corporation has provided an indemnity to the Parent Indemnified Parties pursuant to Section 9.1(a) of this Agreement;
(ig) revaluation for accounting purposes by the Company or any Company Subsidiary of any of its assets;
(j) declaration, setting aside or payment of a dividend or other distribution their respective assets (whether in cash, stock tangible or property) in respect of any share of Company capital stock, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share of Company capital stock (or options or other rights convertible into, exercisable or exchangeable thereforintangible);
(kh) increase in the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company or any Company Subsidiary to any of their respective officer or directors or any of its officers, directors, employees or advisorswith an annual base salary in excess of $100,000, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any Company Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such person;
(li) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its 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;
(m) sale, lease or other disposition of any of the material assets (whether tangible or material intangible) or properties of the Company or Company Subsidiary, including, but not limited to, the sale of any accounts receivable of the Company or any Company Subsidiary, or any creation of any security interest in such material assets or material propertiesproperties other than (i) the sale, lease, license or other disposition of inventory in the ordinary course of business consistent with past practice and (ii) sales, leases, licenses or other dispositions not involving in excess of $25,000 individually or $250,000 in the aggregate of proceeds;
(nj) loan by the Company or any Company Subsidiary to any person or entity, incurring by the Company or any Company Subsidiary of any indebtedness, guaranteeing by the Company or any Company Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Company 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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(ok) waiver or release of any right or claim of the CompanyCompany or any Company Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Company Subsidiary exceeding $25,000 individually or $250,000 in the aggregate;
(p) the commencement, settlement, notice or 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(sl) any (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) event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyEffect; or
(wm) agreement by the Company or any Company Subsidiary, or any officer or employees on behalf of the Company Company, to do any of the things described in the preceding clauses (a) through (vl) of this Section 3.8 (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 December January 31, 20022006, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 5.1 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practicepractices;
(b) modifications, amendments or changes to the Certificate Charter Documents or the organizational documents of Incorporation or Bylaws of the Companyany Subsidiary;
(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 $5,000 50,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company or any of its Subsidiaries), other than paymentpayments, discharge discharges or satisfaction satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance SheetSheets;
(ed) destruction of, damage to to, or loss of any material assets (whether tangible or intangible), material business or loss of any material customer of the Company or any of its Subsidiaries (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 or claim of wrongful discharge or other unlawful employment or labor practice or actionaction with respect to the Company or any of its Subsidiaries;
(gf) material adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(hg) adoption of or change in any material 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;
(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;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share Company Capital Stock or the capital stock of Company capital stockany Subsidiary, or any split, combination or reclassification in respect of any share shares of Company Capital Stock or the capital stockstock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company Capital Stock or the capital stockstock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company Capital Stock or the capital stock of any Subsidiary (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Unvested Shares;
(kj) increase in or other change to the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company or any of its Subsidiaries to any of its their respective officers, directors, employees directors or advisorsemployees, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such person;
(lk) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its 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;
(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, including 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 in the ordinary course of business as conducted on that date and consistent with past practices;
(nl) loan by the Company or any of its Subsidiaries to any person Person, or entity, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(m) incurring by the Company or any of its Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(on) 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;
(po) 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 the Principal Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its affairsSubsidiaries or relating to any of their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qp) notice to the Company or its directors of any claim or potential claim of ownership ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (as defined in Section 2.13 below) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other person's ’s Intellectual Property (as defined in Section 2.13 below)Property;
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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;
(vq) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(r) acquisition by the CompanyCompany or any Subsidiary or agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(s) grant by the Company or any Subsidiary of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule; or
(wt) 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 (vs) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth on Company Schedule 2.8, since December 31, 20021999, 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 practicepractices;
(b) amendments or changes to the Certificate 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 $5,000 25,000 in any one case, or $10,000 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 or assets, material business or loss of any material customer of the Company (whether or not covered by insurance);
(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 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);, except in accordance with the agreements evidencing Company 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 (cash, equity or otherwise) 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 (cash, equity or otherwise) 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;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 or, to the Knowledge of the Company, 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 its directors 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 2.13 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 2.13 below2.12 hereof);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stockshares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon the exercise of Company Options;
(s) any except in the ordinary course of business, consistent with past 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) any event or condition of any 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 December 31, 2002the 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 practicepractices;
(b) amendments or changes to the Certificate 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 $5,000 50,000 in any one case, or $10,000 100,000 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 loss of any material customer of the Company (whether or not covered by insurance);
(f) employment dispute, including, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or actionaction with respect to the Company;
(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 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such personperson other than in the ordinary course of business consistent with past practices;
(l) 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 (whether 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 in the ordinary course of business 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;
(n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractice;
(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 or, to the Knowledge of the Company, 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 its directors 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 2.13 belowhereof) owned by or developed or created by the Company or of infringement by the Company of any other person's ’s Intellectual Property (as defined in Section 2.13 belowhereof);
(rs) issuance or sale, or contract or agreement to issue or sell, by the Company of any capital stockshares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(s) any (i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or 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) event or condition of any 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 December Except as provided in Section 4.1, since March 31, 20022001, ---------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted and consistent with past practicepractices;
(b) amendments or changes to the Certificate certificate of Incorporation incorporation or Bylaws bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 except in the aggregateordinary course of business as conducted and consistent with past practices;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction of such matters 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 loss of any material customer of the Company (whether or not covered by insurance);
(f) labor trouble or claim of wrongful discharge or other unlawful labor practice or actionaction with respect to the Company;
(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 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 share of Company capital stockCommon Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Common Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except for (i) payments and repayments of salary and loans (including interest payments) to Stockholders and (ii) in accordance with the agreements evidencing Company Options;
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person, except in the ordinary course of business as conducted and consistent with past practices;
(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 (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease lease, license 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 in such material assets or material properties, except in the ordinary course of business consistent with past practices;
(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 and otherwise in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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, except in the ordinary course of business as conducted and consistent with past practices;
(p) the commencement, settlement, notice or, to the Knowledge of the Company or the 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 belowhereof) 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 2.13 belowhereof);; ------------
(r) except for the Company Options, issuance or sale, or contract to issue or sell, by the Company of any capital stockshares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise thereof;
(s) any (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 to the Intellectual Property of any person 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 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, except in each case, in the ordinary course of business consistent with past practices;
(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) any event or condition of any character that has had or 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 2.9 (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 (Lantronix Inc)
No Changes. Since December 31, 2002the 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 practiceMaterial Adverse Effect;
(b) amendments or changes to the Certificate 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 $5,000 25,000 in any one case, or $10,000 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 or loss of any material customer intangible) of the Company (or any of its Subsidiaries with a book value in excess of $25,000 in any one case or $50,000 in the aggregate, 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) material 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 share Company Capital Stock or any stock or securities of Company capital stockits Subsidiaries, or any split, combination or reclassification in respect of any share shares of Company capital 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 any share shares of Company capital 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 share shares of Company capital 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 Contracts evidencing Company Options and Company Restricted Stock;
(k) increase in the base salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such personPerson;
(l) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its 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;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulebusiness;
(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 threat or, to the Knowledge of the Company, 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 its directors 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 2.13 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 2.13 below)Property;
(rq) issuance or sale, or contract to issue or sell, by the Company or any of its Subsidiaries of any capital stockshares of Company Capital Stock or any stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock 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) any (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 entity; Property, (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 any agreement 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) event or condition of any character 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 December 31, 20022015, 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 practicepractices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 loss of any material customer of the Company (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) material 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ki) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) increase in the salary or other compensation (including equity based compensation whether payable in cash, equity 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 (cash, equity or otherwise) to any such personPerson;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound 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, 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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 or, to the Knowledge of the Company, 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) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice to the Company or its directors 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 2.13 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 2.13 below2.14 hereof);
(ru) issuance or sale, or contract or agreement to issue or sell, by the Company of any capital stockshares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan;
(s) any (i) sale except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past 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 entity; Person, (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;
(u) hiring or termination of employees of the Company;
(vx) event or condition of any 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 December March 31, 2002, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practicepractices;
(b) amendments or changes to the Certificate Articles of Incorporation Organization or Bylaws Operating Agreement of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 5,000 individually or $25,000 10,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(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;
(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 stock, membership interests or property) in respect of any share of Company capital stockMembership Interest, or any split, combination or reclassification in respect of any share of Company capital stockMembership Interest, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stockMembership Interests, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share of Company capital stock Membership Interests (or options or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) 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;
(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;
(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 practice practices that are set forth on Section 2.9(n) of the Disclosure Schedule;
(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 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 its directors managers of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stockMembership Interests, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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) event or condition of any character 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 (vw) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Xicor Inc)
No Changes. Since December 31Between September 30, 20022003 and the date of this Agreement, there has not been, occurred or arisen any:
(a) material 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 practicepractices;
(b) amendments or changes to the Certificate certificate of Incorporation incorporation, bylaws or Bylaws other organizational documents of the CompanyCompany or any of its subsidiaries;
(c) (i) 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, or (ii) any other expenditure, commitment or transaction by the Company or any of its subsidiaries exceeding $25,000 individually or $50,000 in the aggregate other than, in the case of clause (ii), in the ordinary course of business consistent with past practices;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction ofchange in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, damage to doubtful accounts or loss of any material assets other reserves, or material business depreciation or loss of any material customer of amortization policies or rates or payment or collection policies or practices) by the Company (whether or not covered by insurance)Company;
(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 GAAP;
(h) change in any material election in respect of Taxes (as defined belowin Section 2.10(a)), 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 of any of its assetsor any of its subsidiaries’ assets (whether tangible or intangible), including without limitation writing down or up the value of inventory or writing off notes or accounts receivable, settling, discounting or compromising any accounts receivable, or reversing any reserves other than in the ordinary course of business and consistent with past practice;
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(ki) increase in the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company to any of its officers, directors, employees or advisorsadvisors (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule), 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 (cash, equity or otherwise) to any such personperson (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule);
(j) termination or extension, or material amendment, waiver or modification of the terms, of any Contract;
(k) commencement by or settlement of any lawsuit or proceeding or other investigation by the Company or any of its subsidiaries other than the routine collection of bills;
(l) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its assets are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, leasesublease, license or commitment to which the Company is party or by which it or any of its assets are bound;
(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, 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;
(nm) 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 trade payables and advances to employees for travel and business expenses expenses, in each case in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(on) waiver or release of any material right or claim of the CompanyCompany or any of its subsidiaries, including any write-off off, discount or other compromise of any account receivable of the CompanyCompany or any of its subsidiaries;
(o) agreement or modification to any marketing, distribution, joint venture, strategic alliance, development or similar arrangement or agreement;
(p) the commencement, settlement, notice request that any vendor or threat of service provider hold or delay any lawsuit invoices or proceeding or other investigation against the Company or its affairsbilling statements, or any reasonable basis for any failure to purchase or replenish inventory in the ordinary course of the foregoingbusiness;
(qi) notice to the Company or its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below);
(r) issuance or sale, license or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (i) sale or license transfer 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 to the Intellectual Property Rights of any person or entity; entity other than in the ordinary course of business, or (ii) purchase or in-license of any Intellectual Property Rights or entering into execution of any agreement with respect to the Intellectual Property Rights of any person or entityentity 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 CompanyCompany or any of its subsidiaries;
(r) destruction, damage, or loss adversely affecting any material assets (whether tangible or intangible) or material business of the Company or any of its subsidiaries (whether or not covered by insurance);
(s) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its subsidiaries;
(t) agreement notice from any material customer that such customer intends to cancel or modification to substantially reduce its purchases of goods and services from the Company and its subsidiaries, or any agreement pursuant to which any other party was granted marketing, distribution, development such cancellation or similar rights of any type or scope with respect to any products or technology of the Companysubstantial reduction;
(u) hiring notice of any claim or termination potential claim of employees ownership by any person other than the Company of the CompanyCompany Intellectual Property (as defined in Section 2.13(a)) owned by or developed or created by the Company or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.13(a));
(v) circumstance, change, event or condition effect of any character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyEffect; or
(w) written or oral 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) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Polycom Inc)
No Changes. Since December 31, 20022010, except as set forth in Section 2.9 of the Schedule of Exceptions, there has or have not been, occurred or arisen any:
(a) transaction by the Company Company, which is material to the Company, except in the ordinary course of business and consistent with past practicepractices;
(b) amendments or changes to the Certificate of Incorporation or Bylaws of the CompanyCompany Charter Documents;
(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 $5,000 10,000 in any one case, or $10,000 25,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or asserted, unasserted, contingent or otherwise), 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 SheetFinancial Statements;
(e) destruction ofpending or, damage to or loss of any material assets or material business or loss of any material customer the Knowledge of the Company (whether Company, threatened action, suit or not covered other legal proceeding by insurance);
(f) or before any Governmental Entity with respect to a labor trouble dispute or claim of wrongful discharge or other unlawful labor practice or actionaction with respect to the Company;
(gf) 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 GAAP;
(hg) change in any material election in respect of Taxes (as defined below)Taxes, adoption or change in any material accounting method in respect of Taxes, material 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);
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(j) destruction of, damage to, or loss of any assets (whether tangible or intangible) of the Company with a book value in excess of $10,000 in any one case or $25,000 in the aggregate, whether or not covered by insurance;
(k) except in the ordinary course of business consistent with past practice or pursuant to the written plans and policies of the Company in effect as of December 31, 2010 and listed on Section 2.23(a)(i) of the Schedule of Exceptions, a material increase in the base salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company to any of its officers, directors, employees or advisorsCompany Personnel, or the declaration, payment or payment, 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 (cash, equity or otherwise) to any such personPerson;
(l) agreement, contract, covenant, instrument, lease, license or commitment entry into any material Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, extension or material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment material Contract to which the Company is a party or by which it or any of its assets are bound;
(m) sale, lease lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company taken as a whole, including the sale of any accounts receivable of the Company, or any creation of any security interest in any such material assets or material properties;
(n) (i) loan made by the Company to any person or entityPerson that is outstanding as of the date hereof (other than accounts receivables, incurring deposits and prepaid expenses in the ordinary course of business, including advances to Company Personnel for travel and business expenses in the ordinary course of business), (ii) incurrence by the Company of any indebtedness, guaranteeing (iii) guarantee by the Company of any indebtedness, (iv) issuance or sale of any debt securities of the Company or guaranteeing (v) 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 practice that are set forth on Section 2.9(n) of the Disclosure Schedule;
(o) granting of any waiver or release by the Company of any right or claim of material to the Company, including any write-off or other compromise of any material account receivable of the Company;
(p) the commencement, settlement, written notice or threat or, to the Knowledge of the Company, threat, of any lawsuit or legal proceeding or other investigation by a Governmental Entity against the Company or its affairs, or any reasonable basis for any of the foregoingCompany;
(q) written notice to the Company or its directors of any claim or potential claim of ownership by any person Person other than the Company of the any Company Intellectual Property (as defined in Section 2.13 below) owned by or owned, developed or created by the Company Company, or of any claim or potential claim of infringement by the Company of any other person's Person’s Intellectual Property (as defined in Section 2.13 below)Property;
(r) issuance or sale, or contract to issue or sell, by the Company of any capital shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (i) sale or license by the Company of any Company Intellectual Property or entering into execution of any agreement with respect to the any Company Intellectual Property with any person or entity or with respect to (other than customer contracts in the Intellectual Property ordinary course of any person or entity; business), (ii) purchase or license by the Company of any Intellectual Property or entering into execution of any agreement with respect to the Intellectual Property of any person or entityother Person, except as contemplated by this Agreement, (iii) agreement by the Company with respect to the development of any Intellectual Property with a third partyparty (other than customer contracts in the ordinary course of business), 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, 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;
(t) agreement or material 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) any other event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on the CompanyEffect; or
(wv) agreement by the Company Company, or any officer officer, employee or employees director on behalf of the Company Company, to do any of the things described in the preceding clauses (a) through (vu) (other than negotiations with Parent and its representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Since December 31, 2002the 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 practicepractices;
(b) modifications, amendments or changes to the Certificate 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 $5,000 in any one case, or $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 loss of any material customer of the Company or its Subsidiary (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) material 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 share of Company capital stockUnits, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stockUnits, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share of Company capital stock Units (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to 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 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 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 (cash, equity or otherwise) 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 (cash, equity or otherwise) 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) 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 (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its their assets are is bound, other than pursuant to the Company’s Standard Form of Agency 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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 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 its directors 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 2.13 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 2.13 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 capital stockCompany Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing;
(st) any other than in the ordinary course of business, (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 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;
its Subsidiary; (u) hiring or termination of employees of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on 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 business of the Company or its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting 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 December 31, 20022015, 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 practicepractices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 loss of any material customer of the Company (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) material 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) (i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) increase in the salary or other compensation (including equity based compensation whether payable in cash, equity 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 (cash, equity or otherwise) to any such personPerson;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound 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, 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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 or, to the Knowledge of the Company, 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) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice to the Company or its directors 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 2.13 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 2.13 below2.14 hereof);
(ru) issuance or sale, or contract or agreement to issue or sell, by the Company of any capital stockshares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan;
(s) any (i) sale except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, consistent with past 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 entity; Person, (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;
(u) hiring or termination of employees of the Company;
(vx) event or condition of any 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 December 31, 2002From the date of the Current Balance Sheet, there has not ---------- been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(b) amendments or changes to the Certificate articles of Incorporation incorporation or Bylaws bylaws of the Company, except to the extent that the Restated Articles of Incorporation have been filed;
(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 $5,000 25,000 in any one case, or $10,000 100,000 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 Ordinary Course of business of liabilities reflected or reserved against in the Current Balance SheetBusiness;
(e) destruction of, damage to or loss of any material assets or material business or loss of any material customer of the Company (whether or not covered by insurance);
(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 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 share of Company capital stockCommon Stock or Company Preferred Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon 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 any share shares of Company capital stockCommon Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock 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;
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(l) agreementother than (x) non-exclusive licenses of object code relating to the sale of the Company's currently shipping products entered into in the ordinary course of business and (y) any other contract not involving the license, contractpurchase or sale of Intellectual Property or Intellectual Property Rights (each as defined in Section 2.12 hereof) entered into in the ordinary ------------ course of business involving an amount not in excess of $25,000 individually or $100,000 in the aggregate, covenant, instrument, lease, license or commitment any Contract 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 Contract to which the Company is a party or by which it or any of its assets are bound;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulebusiness;
(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 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below2.12 hereof);; ------------
(rq) except for the Series A Preferred Stock Purchase Agreement and the grant of stock options under the Plan, issuance or sale, or contract to issue or sell, by the Company of any capital stockshares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise thereof;
(sr) any except for the granting of non-exclusive licenses of object code relating to the sale of the Company's currently shipping products entered into 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;
(ts) 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;
(ut) any hiring or termination of employees of the Company, except in the ordinary course of business consistent with past practices or pursuant to existing employment agreements;
(vu) any event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect on the Company; or
(wv) 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 (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
Samples: Agreement and Plan of Reorganization (Lantronix Inc)
No Changes. Since December 31September 30, 20022000, there has not been, occurred or ---------- arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practicepractices;
(b) amendments or changes to the Certificate Articles of Incorporation or Bylaws of the Company;
(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 $5,000 25,000 in any one case, or $10,000 100,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(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 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 share of Company capital stockCommon Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock 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 Shareholders for income tax purposes pursuant to Section 5.1(f);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) 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;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 Principal Shareholder, 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 any Shareholder, director or its directors 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 2.13 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 2.13 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) any (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) event or condition of any character 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 (Krooss John)
No Changes. Since December March 31, 20021999, except as disclosed in Section 2.9 of the Disclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company or the Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practicepractices;
(b) amendments or changes to the Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company or the Subsidiary exceeding $10,000 25,000 individually or $25,000 100,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 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 SheetSheet or arising after the date thereof;
(ed) destruction of, material damage to or the loss of any material assets or assets, material business or loss of any material customer of the Company or the Subsidiary (whether or not covered by insurance);
(fe) collective work stoppage or labor trouble strike or claim of wrongful discharge or other unlawful labor practice or action;
(gf) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or the Subsidiary other than as required by GAAP;
(hg) change in any material election in respect of Taxes (as defined below), adoption 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 or the Subsidiary of any of its their respective assets;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stock, Capital Stock or any split, combination or reclassification in respect of any share shares of Company capital stock, Capital Stock or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock or by the Subsidiary of Subsidiary Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Warrants;
(kj) increase in the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company or the Subsidiary to any of its officers, directors, employees or advisorsadvisors (other than, in the case of employees who are not officers or directors, increases in salary in the ordinary course consistent with past practice that do not exceed $5,000 per year), or the declaration, payment or commitment or obligation of any kind for the payment payment, by the Company or the Subsidiary, of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such person;
(lk) other than those entered into in the ordinary course of business consistent with past practice, any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or the Subsidiary is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or Subsidiary is a party or by which it they or any of its their assets are bound;
(ml) sale, lease lease, license or other disposition of any of the material assets or material properties of the Company or the Subsidiary or any creation of any security interest in such material assets or material properties;
(nm) loan by the Company or the Subsidiary to any person or entity, incurring by the Company or the Subsidiary of any indebtedness, guaranteeing by the Company or the Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or the Subsidiary or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(on) waiver or release of any right or claim of the CompanyCompany or the Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Subsidiary;
(p) the commencement, settlement, notice or 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(so) any (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) event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyEffect; or
(wp) agreement by the Company Company, the Subsidiary or any officer or employees on behalf of the Company or the Subsidiary to do any of the things described in the preceding clauses (a) through (vu) of this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Probusiness Services Inc)
No Changes. Since Between December 31, 20021999 and the date of this Agreement, ---------- there has not been, occurred or arisen any:
(a) transaction by amendments or changes to the articles of organization or bylaws of the Company (except in the ordinary course of business consistent with past practiceas required hereby);
(b) amendments or changes to the Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 100,000 individually or $25,000 500,000 in the aggregate;
(dc) payment, discharge or satisfaction, in any amount in excess of $5,000 100,000 in any one case, or $10,000 300,000 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;
(ed) destruction of, damage to of or loss of any material assets or material business or loss of any material customer of the Company (whether or not covered by insurance);
(fe) labor trouble or claim of wrongful discharge or other unlawful labor practice or actionaction or any attempt to unionize employees;
(gf) 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 GAAP;
(hg) change in any material election in respect of Taxes (as defined below), 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 claim or assessment in respect of Taxes;
(ih) material revaluation by the Company of any of its assets;
(ji) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stockCommon Stock or Preferred, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon Stock or Preferred, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCommon Stock or Preferred, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Common Stock or Preferred (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except for the issuance of Company Options or other securities of the Company set forth in Section 2.2 of the Company Disclosure Schedule or issuance of shares of Company ----------- Common Stock in accordance with the agreements evidencing Company Options;
(kj) increase in the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company to any of its officers, directors, employees employees, contract workers 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 (cash, equity or otherwise) to any such person;
(lk) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its assets are bound or any termination, extension, amendment or modification (outside of the terms ordinary course 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;
(mbusiness) 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;
(nl) loan by the Company to any person or entityentity (other than pursuant to the terms of the Plan in connection with the exercise of any Company Options), 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 or contract workers for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(om) 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 in excess of $50,000;
(pn) the commencement, settlement, receipt of written notice of, or to the knowledge of the Company overt threat of 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 below);
(r) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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;
(to) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development distribution or similar rights of any type or scope with respect to any products or technology of the CompanyCompany outside of the ordinary course of business;
(up) hiring or termination of employees of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on the CompanyEffect; or
(wq) agreement by the Company or any officer or employees employee on behalf of the Company to do any of the things described in the preceding clauses (a) through (vo) of this Section 2.8 (other than negotiations with Parent and its representatives regarding the transactions contemplated as required by this Agreement).. -----------
Appears in 1 contract
Samples: Recapitalization and Exchange Offer Agreement (Internet Capital Group Inc)
No Changes. Since December 31Except as set forth on SECTION 2.9 of the Disclosure Schedule, 2002since 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 practicepractices;
(b) amendments or changes to the Certificate certificate of Incorporation incorporation or Bylaws bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 15,000 individually or $25,000 37,500 in the aggregate;
(d) paymentemployment dispute, discharge including but not limited to, claims or satisfactionmatters raised by any individuals or any workers' representative organization, in any amount in excess of $5,000 in any one case, bargaining unit or $10,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(f) union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or actionaction with respect to the Company;
(ge) 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 GAAP;
(hf) 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;
(ig) 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;
(jh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stockCommon Stock or any Company Preferred Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon 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 any share shares of Company capital stockCommon Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock 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 or Company Unvested Common Stock;
(ki) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(l) 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 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;
(mj) sale, lease 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;
(nk) loan by the Company to any person or entity, or purchase by the Company or of any debt securities of any person or entity;
(l) incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(om) 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;
(pn) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qo) notice to the Company or its directors 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 SECTION 2.13 belowhereof) 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 SECTION 2.13 belowhereof);
(rp) issuance or sale, or contract or agreement to issue or sell, by the Company of any capital stockshares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plans;
(s) any (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 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;
(vr) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect on Effect;
(s) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(wt) 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 (vs) 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: Merger Agreement (Scansoft Inc)
No Changes. Since December 31Except as set forth on Section 5.18 of the Company Disclosure Schedule or as expressly contemplated by this Agreement, 2002since 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 practice;
(b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 or loss of any material customer of the Company (whether tangible or intangible) having a replacement value in excess of $25,000 or any material business or Customer of the Company (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) material 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 share of Company capital stockSecurities, or any split, combination or reclassification in respect of any share of Company capital stockSecurities, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share Company Securities (other than Company Securities issued upon the exercise or conversion of Company capital stockthe Convertible Securities), or any direct or indirect repurchase, redemption, or other acquisition by the Company of of, or any share of issuance of, any Company capital 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, salary or other compensation increase to any Employee;
(k) increase in the salary implemented any location closing or other compensation (cashlayoff of employees that could implicate the Worker Adjustment Retraining and Notification Act, equity or otherwise) payable or to become payable by the Company to any of its officers, 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 (cash, equity or otherwise) to any such person“WARN Act”);
(l) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company is party or by which it or any of its 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;
(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;
(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 practice that are set forth on Section 2.9(n) of the Disclosure ScheduleCompany;
(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 Accounts Receivable or extension of any other incentive with respect thereto;
(o) written or, to the Knowledge of the Company, other notice or threat of any 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;
(q) increase in any wage, salary, bonus or other compensation of any officer, employee, director, representative or consultant of the Company;
(pr) the commencementemployment dispute, settlementincluding claims or matters raised by any individual, notice or threat of any lawsuit or proceeding or other investigation against the Company or its affairsGovernmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any reasonable basis for any other unlawful employment or labor practice or action or violation of Law, in each case with respect to the foregoingCompany;
(qs) written notice to the Company or its directors 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 2.13 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 2.13 below)Rights;
(rt) issuance or (i) sale, lease, license, assignment, or contract to issue or sell, transfer by the Company of to any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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 entity; Person, 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 any 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) event or condition of any character 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 December 31, 2002Between 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 practicepractices;
(b) amendments or changes to the Certificate 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 $5,000 in any one case, or $10,000 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 or loss of any material customer of the Company (whether or not covered by insurance);
(f) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) material 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 share of Company capital stockCapital Stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCapital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock Capital Stock (or options options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or the issuance of Unvested Company Common Stock;
(ki) material increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such personPerson (except pursuant to the Company’s pre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(lj) agreementany termination or extension, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound or any terminationamendment, extension, amendment waiver or modification of the terms terms, of any agreementContract required to be disclosed in Section 3.14 of the Company Disclosure Schedule (other than terminations in connection with the scheduled end of the term of such Contract);
(k) except in the ordinary course of business consistent with past practices, contract, covenant, instrumentsale, lease, sublease, license or commitment to which the Company is party or by which it or any of its assets are bound;
(m) sale, lease 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;
(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 practice that are set forth on Section 2.9(n) 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 Disclosure ScheduleCompany 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 or, to the Knowledge of the Company, 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 its directors 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 2.13 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 2.13 below)Rights;
(rp) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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 any agreement pursuant to which any other party was granted marketingcircumstance, distributionchange, 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) event or condition effect of any 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 December 31Except as set forth on Schedule 2.09, 2002since the Current Balance Sheet Date, there has not been, occurred or arisen anyany of the following with respect to the Company:
(a) material transaction by the Company except in the ordinary course of business consistent with past practicepractices;
(b) amendments or changes to the Certificate of Incorporation or Bylaws organizational documents of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 5,000 individually or $25,000 10,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentpayments, discharge discharges or satisfaction satisfactions made or given in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practices;
(e) destruction of, damage to or loss of any material assets or material business or loss of any material customer of the Company (whether or not covered by insurance);
(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) rates by the Company 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 their respective assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stock, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stock, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company redemption of any share of Company capital stock (or options or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(l) 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 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;
(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;
(nm) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtednessindebtedness (in each case, except in the ordinary course of business and consistent with past practice, including, without limitation, travel and related expenses advanced to employees), issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(on) waiver or release of any material or valuable right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(po) the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qp) notice to the Company Company, or its directors their respective directors, officers or managers or advisors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 below) intellectual property 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 2.13 below)intellectual property;
(rq) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(s) any (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;
(tr) 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;
; (us) hiring or termination of employees any employee of the Company;
(vt) event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyEffect; or
(wu) agreement by the Company Company, or any officer officer, manager or employees employee thereof on behalf of the Company to do any of the things described in the preceding clauses (a) through (vt) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Xfone Inc)
No Changes. Since December 31Except as set forth on Schedule 2.09, 2002since the Current Balance Sheet Date, there has not been, occurred or arisen anyany of the following with respect to the Company:
(a) material transaction by the Company except in the ordinary course of business consistent with past practicepractices;
(b) amendments or changes to the Certificate of Incorporation or Bylaws organizational documents of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 5,000 individually or $25,000 20,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 20,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentpayments, discharge discharges or satisfaction satisfactions made or given in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practices;
(e) destruction of, damage to or loss of any material assets or material business or loss of any material customer of the Company (whether or not covered by insurance);
(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) rates by the Company 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 their respective assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company capital stock, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company capital stock, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company redemption of any share of Company capital stock (or options or other rights convertible into, exercisable or exchangeable therefor);
(k) increase in the salary or other compensation (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(l) 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 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;
(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;
(nm) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtednessindebtedness (in each case, except in the ordinary course of business and consistent with past practice, including, without limitation, travel and related expenses advanced to employees), issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(on) waiver or release of any material or valuable right or claim of the CompanyCompany , including any write-off or other compromise of any account receivable of the CompanyCompany ;
(po) the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(qp) notice to the Company Company, or its directors their respective directors, officers or managers or advisors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 below) intellectual property 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 2.13 below)intellectual property;
(rq) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoingforegoing (other than a transfer of capital stock occasioned by the exercise of the MCG Warrants);
(s) any (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;
(tr) 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;
(us) hiring or termination of employees any employee of the Company;
(vt) event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect on the CompanyEffect; or
(wu) agreement by the Company Company, or any officer officer, manager or employees employee thereof on behalf of the Company to do any of the things described in the preceding clauses (a) through (vt) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Xfone Inc)
No Changes. Since December 31September 30, 20022000, there has not been, occurred ---------- or arisen any:
(a) transaction by the Company except in the ordinary course of business consistent with past practicepractices;
(b) amendments or changes to the Certificate 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 $5,000 10,000 in any one case, or $10,000 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 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) 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 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 share of Company capital common stock, or any split, combination or reclassification in respect of any share shares of Company capital stockCommon Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share shares of Company capital stockCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company capital stock 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 (cash, equity or otherwise) 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 (cash, equity or otherwise) 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 practice that are set forth on Section 2.9(n) of the Disclosure Schedulepractices;
(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 its directors 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 2.13 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 2.13 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) any 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 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, event or condition of any character 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 December 31Except as set forth in Section 2.9 of the Company Disclosure Letter, 2002since 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 practicethe Company's Business;
(bB) amendments or changes to the Certificate 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 $5,000 50,000 in any one case, or $10,000 100,000 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 or assets, material business or loss of any material customer of the Company or any of its subsidiaries (whether or not covered by insurance);
(fF) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(gG) material 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 share Company Capital Stock or any capital stock of Company capital stockany subsidiary of the Company, or any split, combination or reclassification in respect of any share shares of Company Capital Stock or any shares of the capital stockstock 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 any share shares of Company Capital Stock or shares of the capital stockstock of any subsidiary of the Company, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share shares of Company 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 Company Warrants and except for Additional Employee Options issued after the date hereof which do not constitute a breach of Section 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 (cash, equity or otherwise) 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 (cash, equity or otherwise) to any such person;
(lL) agreement, contract, covenant, instrument, lease, license or commitment to which other than the Contracts identified in Section 2.9(L) of the Company is party or by which it or any of its assets are bound or any termination, extension, amendment or modification Disclosure Letter and Contracts entered into in the Ordinary Course of the terms 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;bound or any termination, extension, amendment or modification the terms of any agreement, contract, covenant, instrument, lease, license 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;
(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 of business consistent with past practice that are set forth on Section 2.9(n) Ordinary Course of the Disclosure ScheduleCompany'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 any 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 its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 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 2.13 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 Capital Stock or any of its subsidiaries' capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any 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) any (i) Except for a transaction entered into after the date hereof in the Ordinary Course of the Company's Business which does not violate Section 4.1 hereof, 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 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 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) any event or condition of any 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).
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