No Changes. Since December 31, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any: (a) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary; (b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregate; (c) payment, discharge, waiver or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liability, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date; (d) destruction of, damage to, or loss of any material tangible assets of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer; (e) employment claims, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries; (f) 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; (g) adoption of or change in any Tax election or accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, 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; (h) revaluation by the Company or any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable; (i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor); (i) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable to any Employee; (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee; (k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound; (l) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries or any creation of any security interest in such assets or properties; (m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person; (n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices; (o) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries; (p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets; (q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person; (r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule; (s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries; (t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property; (u) a Company Material Adverse Effect; (v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries; (w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole; (x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization; (y) increase in the rights to indemnification of any Employees; (z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans; (aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent); (bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries; (cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
No Changes. Since December 31the Balance Sheet Date, 2013except as expressly permitted under, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary;
(bc) expenditure, transaction or commitment exceeding $75,000 25,000 individually or $150,000 75,000 in the aggregateaggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiaries;
(cd) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 25,000 in any one case, or $150,000 75,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(fg) 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 SubsidiariesSubsidiaries other than as required by GAAP;
(gh) adoption of or change in any Tax election accounting method or accounting methodmaterial Tax election, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity closing agreement or closing agreement, agreement or settlement of any claim or assessment in respect of Taxes, settlement of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(hi) revaluation by the Company or any of its Subsidiaries of any of their respective its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ik) other than in the ordinary course of business consistent with past practice, material increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employee; (ii) of their respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or cash, equity or otherwiseother property) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(kl) any terminationtermination or extension, extensionor material waiver, amendment or modification of the terms of any Material Contract agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(lm) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiaries, or any creation of any security interest in such assets or properties;
(mn) material loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating agreement, except for advances to any loan from employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company of any Indebtednessmaterial indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(pq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qr) written notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property owned, developed or created by an third PersonProperty;
(rs) issuance, grant, delivery, sale or purchase, or proposal proposal, contract or Contract agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Stock or (ii) shares of capital stock of any of its Subsidiaries, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued or Company Warrants or the conversion of Company Preferred Stock or the grant of options to purchase Company Common Stock to employees of the Company under the Plan in the ordinary course of business and set forth in Section 3.2(d) of the Disclosure Scheduleconsistent with past practice;
(st) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or the license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer Intellectual Property of any Company Intellectual Property) Person, other than non-exclusive end exclusive, end-user licenses granted for the Company’s products entered into in the ordinary course of business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(tu) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company Products or Company Intellectual Propertyany of its Subsidiaries;
(uv) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into property or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(wx) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company and or any of its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase grant by the Company or any of its Subsidiaries of any severance, change in control or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the rights to indemnification of any EmployeesDisclosure Schedule;
(z) waiver of any stock repurchase rights or rights of first refusal, accelerationadoption, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization termination of any cash or equity exchange for any options granted under any of such plans;
(aa) executionCompany Employee Plan, termination execution or amendment of any Employee Agreement Agreement, or payment or agreement by the Company or any of its Subsidiaries to pay any bonus or special remuneration to any director or Employee, or increase or modify the salaries, wage rates or other compensation (including any equity-based compensation) of any Employee, other than non-material increases in the execution ordinary course of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent)business consistent with past practice;
(bbaa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(ccbb) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee)hiring, promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for employees; or
(cc) agreement by the Company or any of its Subsidiaries 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 ordinary course preceding clauses (a) through (bb) of business consistent this Section 2.10 (other than negotiations with past practice;Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 20132015, the Company and its Subsidiaries have conducted their respective businesses except as disclosed in the ordinary course of business consistent with past practice and Disclosure Schedule, there has not been, occurred or arisen any:
(a) modificationstransaction by the Company except in the ordinary course of business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or of the organizational documents of any SubsidiaryCompany other than as contemplated by this Agreement;
(bc) expenditure, transaction capital expenditure or commitment by the Company exceeding $75,000 individually or $150,000 25,000 in the aggregate;
(cd) payment, discharge, waiver discharge or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Datebusiness;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) material employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) adoption or 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 GAAP or any of its Subsidiariesby Law;
(gh) adoption of or change in any material Tax election or or, other than in the ordinary course of business, any Tax accounting method, entry entering into any Tax allocation agreementclosing agreement with respect to Taxes, Tax sharing agreement, Tax indemnity agreement settlement or closing agreement, agreement 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;
(hi) revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(k) (i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business consistent with past practicebusiness, increase in(ii) promotion, decrease in demotion or other change to the salary, wage rates, bonuses employment status or fringe benefits 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 compensationcompensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any Employee; of its officers, directors, 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 or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary extraordinary compensation to any such Person;
(m) agreement, contract, covenant, instrument, lease, license or compensation (including equity based compensation), in each case commitment to which the Company is a party or by which it or any of its Employees; or (iii) promise to pay any special bonus or special remuneration assets (whether payable in cash, equity tangible or otherwiseintangible) to any Employee;
(k) are bound or any termination, extension, amendment or modification of the terms of any Material Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective 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;
(ln) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business business, consistent with past practicepractices, including the sale of any accounts receivable of the Company or any of its Subsidiaries Accounts Receivable, or any creation of any security interest in such assets or properties;
(mo) loan by the Company or any of its Subsidiaries to any Person (Person, or purchase by the Company of any debt securities of any Person, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business business, consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personpractices;
(np) except for the Promissory Note, incurrence by the Company 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 obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business business, consistent with past practices;
(oq) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesAccounts Receivable;
(pr) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of Company, its Subsidiaries affairs, or relating to any of their respective 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 of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property owned, developed or created by an third PersonRights (as defined in Section 2.14 hereof);
(ru) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock; , Company Preferred Stock or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Capital Common Stock upon the exercise of Company Options options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlan;
(s) (i) 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 transfer to any Person of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license Company Intellectual Property with any Person or transfer with respect to the Intellectual Property Rights of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; Person, (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, Rights or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any the Intellectual Property owned by or developed or created by Rights of any third Person other than licenses for Shrink-Wrap Code; or Person, (iii) material 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 (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) in pricing or royalties set or charged by Persons who have licensed any Technology or Intellectual Property Rights to the Company or any of its SubsidiariesCompany;
(tw) agreement or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual PropertyProduct;
(ux) event or condition of any character that has had a Company Material Adverse Effect;
(vy) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property (as defined in Section 2.13 hereof) by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;Company; or
(z) waiver of any stock repurchase rights or rights of first refusalagreement by the Company, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity officer or similar incentive awards (including any long term incentive awards)employees on behalf of the Company, or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under to do any of such plans;
the things described in the preceding clauses (aaa) execution, termination or amendment through (y) of any Employee Agreement this Section 2.10 (other than negotiations with Parent and its representatives regarding the execution of transactions contemplated by this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to ParentRelated Agreements);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
No Changes. Since December 31Except as provided in Section 2.10 of the Disclosure Schedule, 2013since the Balance Sheet Date through the date of this Agreement, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modificationstransaction by the Company except in the ordinary course of business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or of the organizational documents of any SubsidiaryCompany;
(bc) expenditure, transaction capital expenditure or commitment by the Company exceeding $75,000 50,000 individually or $150,000 250,000 in the aggregate;
(cd) payment, discharge, waiver discharge or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business business, consistent with past practice practices, of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred arising in the ordinary course of business business, consistent with past practice practices, since the Balance Sheet Date;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, chargesincluding but not limited to, grievances claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) 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 Subsidiariesother than as required by GAAP;
(gh) adoption of or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method, entry entering into any Tax allocation agreementclosing agreement with respect to Taxes, Tax sharing agreement, Tax indemnity agreement settlement or closing agreement, agreement 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;
(hi) revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ik) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; (ii) of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(kl) entry into a Material Contract or any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundContract;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business business, consistent with past practicepractices, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Company, or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (person or entity, or purchase by the Company of any debt securities of any person or entity, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business business, consistent with past practice)practices, forgiveness by in an amount not to exceed $10,000 in any one case or $25,000 in the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personaggregate;
(no) except for the Promissory Note, incurrence by the Company of any Indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business business, consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesCompany;
(pq) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or, to the Knowledge of the Company, any reasonable basis for any of its Subsidiaries or relating to any of their respective businesses, properties or assetsthe foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one of its Subsidiaries a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other person’s Intellectual Property owned, developed or created by an third PersonRights (as defined in Section 2.14 hereof);
(rs) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock; , Company Preferred Stock or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Options or Company Capital Common Stock upon the exercise of Company Options options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlans;
(s) (i) sale, lease, sale or license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license Company Intellectual Property with any person or transfer entity or with respect to the Intellectual Property Rights of any Company Intellectual Propertyperson or entity, (ii) other than non-exclusive end user licenses granted except in the ordinary course of business business, consistent with past practice; (ii) practices, purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, Rights or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any the Intellectual Property owned by Rights of any person or developed entity, (iii) agreement or created by modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third Person other than licenses for Shrink-Wrap Code; party, or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers distributors or licensees; resellers or (B) Persons licensees or in pricing or royalties set or charged by persons who have licensed any Technology or Intellectual Property Rights to the Company or any of its SubsidiariesCompany;
(tu) agreement or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products product, service or Company Intellectual Propertytechnology of the Company;
(uv) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property (as defined in Section 2.13 hereof) by the Company or any of its Subsidiaries;Company; or
(wx) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or to do any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or the things described in the aggregate, to the Company and its Subsidiaries, taken as a whole;
preceding clauses (xa) adoption, termination or amendment through (w) of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 2.10 (other than negotiations with Parent and its representatives regarding the execution of transactions contemplated by this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to ParentRelated Agreements);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
No Changes. Since December 31Between September 30, 20132003 and the date of this Agreement, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modifications, 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 practices;
(b) amendments or changes to the Charter Documents certificate of incorporation, bylaws or the other organizational documents of the Company or any Subsidiary;
(b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregateof its subsidiaries;
(c) payment, discharge, waiver (i) capital expenditure or satisfaction in commitment by the Company or any amount in excess of its subsidiaries exceeding $75,000 25,000 individually or $150,000 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 any Liabilityclause (ii), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice practices;
(d) payment, discharge or satisfaction, in any amount in excess of Liabilities $25,000 in any one case, or $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 or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date;
(d) destruction of, damage to, or loss of any material tangible assets of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customerSheet;
(e) employment claimschange in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union doubtful accounts or other labor organization regardingreserves, claiming or alleging an unfair labor practice, wrongful discharge depreciation or any other unlawful employment amortization policies or labor practice rates or action with respect to payment or collection policies or practices) by the Company or any of its SubsidiariesCompany;
(f) change in any material election in respect of Taxes (as defined in Section 2.10(a)), adoption or change in any accounting methods or practices (including any change method in depreciation or amortization policies or rates) by the Company or any respect of its Subsidiaries;
(g) adoption of or change in any Tax election or accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementTaxes, 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;
(hg) revaluation by the Company of any of its or any of its Subsidiaries of any of their respective 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;
(ih) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(i) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; of its officers, directors, employees or advisors (iiexcept 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 to any such person (whether in cash except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule);
(j) termination or equity extension, or otherwisematerial 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 subsidiaries other than the routine collection of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundbills;
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practicesubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Company, or any creation of any security interest in such material assets or material properties;
(m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice)person or entity, forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence incurring by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreementindebtedness, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations trade payables and advances to reimburse employees for travel and business expenses incurred expenses, in each case in the ordinary course of business consistent with past practices;
(on) waiver or release of any material right or claim of the Company or any of its Subsidiariessubsidiaries, including any waiverwrite-off, release discount or other compromise of any account receivable of the Company or any of its subsidiaries;
(o) agreement or modification to any marketing, distribution, joint venture, strategic alliance, development or similar arrangement or agreement;
(p) request that any vendor or service provider hold or delay any invoices or billing statements, or any failure to purchase or replenish inventory in the ordinary course of business;
(i) sale, license or transfer of any Company Intellectual Property or execution of any agreement with respect to the Company Intellectual Property with any person or entity with respect to the Intellectual Property Rights of any person or entity other than in the ordinary course of business, or (ii) purchase or in-license of any Intellectual Property Rights or execution of any agreement with respect to the Intellectual Property Rights of any person or entity 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 or any of its Subsidiariessubsidiaries;
(pr) commencement destruction, damage, or settlement loss adversely affecting any material assets (whether tangible or intangible) or material business of any lawsuit by the Company or any of its Subsidiaries, subsidiaries (whether or commencement, settlement, notice or, to the Knowledge not covered by insurance);
(s) labor trouble or claim of the Company, threat of any lawsuit or proceeding wrongful discharge or other investigation against unlawful labor practice or action with respect to the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assetssubsidiaries;
(qt) notice from any material customer that such customer intends to cancel or substantially reduce its purchases of goods and services from the Company and its subsidiaries, or any such cancellation or substantial reduction;
(u) notice of any claim or potential claim of ownership, interest or right ownership by any Person person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth as defined in Section 3.2(d2.13(a)) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or of infringement by the Company of any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any other person’s Intellectual Property to the Company or any of its Subsidiaries;
Rights (t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effectas defined in Section 2.13(a));
(v) purchase circumstance, change, event or sale effect of any interest in real property, granting of any security interest in any real property, entry into character that has had or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;is reasonably likely to have a Material Adverse Effect; or
(w) acquisition by the Company written or any of its Subsidiaries of, or oral agreement by the Company or to do any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or the things described in the aggregate, to the Company and its Subsidiaries, taken as a whole;
preceding clauses (xa) adoption, termination or amendment through (v) of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 2.9 (other than negotiations with Parent and its representatives regarding the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parenttransactions contemplated by this Agreement);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
No Changes. Since December 31the date of the Current Balance Sheet, 2013except as expressly permitted under, required or specifically consented to by Buyer pursuant to Section 6.1 hereof, and except as set forth in Section 4.10 of the Company Disclosure Schedule, and its Subsidiaries have conducted their respective businesses except in the ordinary course of business consistent connection with past practice and this Agreement there has not been, occurred or arisen any:
(a) Contract entered into by the Company or any modifications, amendments or changes to any Contract except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any SubsidiaryDocuments;
(bc) expenditure, transaction or commitment exceeding $75,000 10,000 individually or $150,000 20,000 in the aggregateaggregate or any commitment or transaction of the type described in Section 4.13 hereof in any case by the Company;
(cd) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 10,000 in any one case, or $150,000 20,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Datebusiness;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), or material business of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) 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 Subsidiariesother than as required by Swedish GAAP;
(gh) adoption of or change in any Tax material election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) material revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ij) the declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ik) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; (ii) of their respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any such person, except for any payments required to be made under the terms of its Employees; any plan or (iiiagreement listed in Section 4.23(b)(1) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeeof the Company Disclosure Schedule and termination payments required by Swedish law;
(kl) Contract to which the Company’s assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective Company’s assets are bound;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company Company, including the sale of any accounts receivable of the Company, or any creation of its Subsidiaries any Lien in such assets or properties, except for the sale, lease, license or other than disposition of the Company’s products to customers in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating agreement, except for advances to any loan from employees for travel and business expenses and extensions of credit to customers, in each case, in the Company or any ordinary course of its Subsidiaries to any Personbusiness consistent with past practices;
(no) except for the Promissory Note, incurrence incurring by the Company of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release or other compromise of any account receivable of the Company by for which a reserve was not present on the Company or any of its Subsidiariescurrent balance sheet;
(pq) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the CompanyShareholders after reasonable inquiry of the Employees, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person Person, other than the Company or one of its Subsidiaries Company, of the Company Intellectual Property (as defined in Section 4.15(a)) 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 owned, developed or created by an third Person(as defined in Section 4.15(a));
(rs) issuance, grant, delivery, sale or purchase, or proposal proposal, contract or Contract agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesCompany, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; , or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(st) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement Contract with respect to Company Intellectual Property, except in the ordinary course of business consistent with past practices (including the sale, lease, or license of the Company’s products to customers), or transfer (ii) purchase or license of any Company Intellectual Property) Property from or to any Person or execution, modification or amendment of any Contract with respect to the Intellectual Property of any Person, other than non-exclusive the sale of the Company’ products pursuant to its standard end user licenses granted license and other terms in the ordinary course of business consistent with past practice; , (iiiii) purchase Contract or license modification or amendment of an existing Contract with respect to the development of any Intellectual Property by the Company for a third party or any of its Subsidiariesby a third party for the Company, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) in pricing or royalties set or charged by Persons who have licensed any Company Intellectual Property to the Company or any except in the ordinary course of its Subsidiariesbusiness consistent with past practices;
(tu) agreement Contract or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products products or Company Intellectual PropertyProperty except in the ordinary course of business consistent with past practices;
(uv) event or condition of any character that has had or to the Knowledge of Shareholders, after reasonable inquiry of its Employees, is reasonably likely to have a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into property or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its SubsidiariesCompany;
(wx) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a wholebusiness of the Company;
(xy) adoption, termination adoption or amendment of any Company Employee Plan Plan, execution or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification amendment of any EmployeesEmployee Agreement;
(z) waiver execution of any stock repurchase rights or rights of first refusalContract by the Company regarding any strategic alliance, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity affiliate or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plansjoint marketing arrangement;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; Capital Stock;
(ddbb) hiring (including any change of status from an independent contractor to an employee)hiring, promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for employees;
(cc) alteration of any interest of the Company in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of its Subsidiaries any insurance policy of the Company except renewals in the ordinary course of business consistent business; or
(ee) 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 (ee) of this Section 4.10 (other than negotiations with past practice;Buyer and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since December 31the Balance Sheet Date, 2013except as expressly permitted under, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and required or specifically consented to by Parent pursuant to Article V hereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any SubsidiaryDocuments;
(bc) expenditure, transaction or commitment exceeding $75,000 25,000 individually or $150,000 100,000 in the aggregateaggregate or any commitment or transaction of the type described in Section 3.16(a) hereof in any case by the Company;
(cd) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 25,000 in any one case, or $150,000 100,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employeesrepresentative organization, bargaining unitunit or union, union or other labor organization regarding, claiming or alleging an unfair labor practicetrouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) 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 Subsidiariesother than as required by GAAP;
(gh) adoption of or change in any Tax election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company;
(i) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; of its respective officers, directors, employees or consultants, or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; respective officers, directors, employees or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeeconsultants;
(kl) 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 Material Contract Contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceCompany, including the sale of any accounts receivable of the Company or any of its Subsidiaries Company, or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practicepractices), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personagreement;
(no) except for the Promissory Note, incurrence incurring by the Company of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesCompany;
(pq) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one of its Subsidiaries of the Company Intellectual Property 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 owned, developed or created by an third PersonProperty;
(rs) issuance, grant, delivery, sale or purchasepurchase of, or proposal proposal, Contract or Contract agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesCompany, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; , or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlan;
(st) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, or (ii) purchase or the license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer Intellectual Property of any Company Intellectual PropertyPerson, (iii) other than non-exclusive end user licenses granted in agreement or modification or amendment of an existing agreement with respect to the ordinary course of business consistent with past practice; (ii) purchase or license development of any Intellectual Property by the Company or any of its Subsidiarieswith a third party, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) in pricing or royalties set or charged by Persons who have licensed any Intellectual Property to the Company or any of its SubsidiariesCompany;
(tu) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual PropertyTechnology of the Company;
(uv) a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its SubsidiariesCompany;
(wx) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a wholebusiness of the Company;
(xy) adoptiongrant by the Company of any severance or termination pay (in cash or otherwise) to any Employee, termination including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule;
(z) adoption or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards)Plan, or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination execution or amendment of any Employee Agreement (other than the execution of the Company’s Company standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parentletter);
(bbaa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its SubsidiariesCompany;
(ccbb) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee)hiring, promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for employees;
(cc) alteration of any interest of the Company in a Subsidiary or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of its Subsidiaries any insurance policy of the Company;
(ee) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $25,000 individually or $100,000 in the ordinary course aggregate; or
(ff) agreement by the Company, or any officer or employees on behalf of business consistent the Company, to do any of the things described in the preceding clauses (a) through (ee) of this Section 3.10 (other than negotiations with past practice;Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Supergen Inc)
No Changes. Since December 31the Balance Sheet Date, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modifications, transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or the other organizational documents of any Subsidiaryother than the Charter Amendment contemplated by this Agreement;
(bc) expenditure, transaction capital expenditure or commitment by the Company exceeding $75,000 100,000 individually or $150,000 200,000 in the aggregate;
(cd) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 50,000 in any one case, or $150,000 100,000 in the aggregate aggregate, of any LiabilityLiabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice or Liabilities of Liabilities the Company reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, chargesincluding, grievances claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) 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 Subsidiariesother than as required by GAAP;
(gh) adoption of or change in any material Tax election (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, 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;
(hi) revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ik) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; (ii) 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 or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(including equity based compensation), in each case l) Contract to which the Company is a party or by which it or any of its Employees; or (iii) promise to pay any special bonus or special remuneration assets (whether payable tangible or intangible) are bound, except for Contracts entered into in cashthe ordinary course of business consistent with past practice, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective its assets are bound, except in the ordinary course of business consistent with past practices;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business consistent with past practicebusiness, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Company, or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (person or entity, or purchase by the Company of any debt securities of any person or entity except for reasonable advances to current 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), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesCompany;
(pq) commencement or settlement of any lawsuit Action by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice 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 its Subsidiaries or relating to any of their respective businesses, properties or assetsthe foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one of its Subsidiaries of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company or any of its Subsidiaries of any other person’s Intellectual Property owned, developed or created by an third Person(as defined in Section 2.13 hereof);
(rs) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; , or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Capital Common Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlan;
(s) (i) saleexcept standard end user licenses entered into in the ordinary course of business, leaseconsistent with past practice, sale or license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license Company Intellectual Property with any person or transfer entity or with respect to the Intellectual Property of any Company Intellectual Propertyperson or entity, or (ii) other than non-exclusive end user licenses granted except in the ordinary course of business consistent with past practice; (ii) business, purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party 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 owned by or developed or created by any with a third Person other than licenses for Shrink-Wrap Code; party, or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) Persons in pricing or royalties set or charged by persons who have licensed any Intellectual Property to the Company or any of its SubsidiariesCompany;
(tu) agreement or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(uv) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any except as otherwise disclosed in Section 2.12(a) of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;Disclosure Schedule; or
(x) adoptionagreement by the Company, termination or amendment any officer or employees on behalf of the Company, to do any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase the things described in the rights to indemnification preceding clauses (a) through (w) of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 2.9 (other than negotiations with Parent and its representatives regarding the execution of transactions contemplated by this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to ParentRelated Agreements);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
No Changes. Since December 31, 20132015, the Company and its Subsidiaries have conducted their respective businesses except as disclosed in the ordinary course of business consistent with past practice and Disclosure Schedule, there has not been, occurred or arisen any:
(a) modificationstransaction by the Company except in the ordinary course of business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) amendments or changes to the Charter Documents or of the organizational documents of any SubsidiaryCompany other than as contemplated by this Agreement;
(bc) expenditure, transaction capital expenditure or commitment by the Company exceeding $75,000 individually or $150,000 25,000 in the aggregate;
(cd) payment, discharge, waiver discharge or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Datebusiness;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) material employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) adoption or 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 GAAP or any of its Subsidiariesby Law;
(gh) adoption of or change in any material Tax election or or, other than in the ordinary course of business, any Tax accounting method, entry entering into any Tax allocation agreementclosing agreement with respect to Taxes, Tax sharing agreement, Tax indemnity agreement settlement or closing agreement, agreement 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;
(hi) revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(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 consistent with past practicebusiness, increase in(ii) promotion, decrease in demotion or other change to the salary, wage rates, bonuses employment status or fringe benefits 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 compensationcompensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any Employee; of its officers, directors, 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 or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary extraordinary compensation to any such Person;
(m) agreement, contract, covenant, instrument, lease, license or compensation (including equity based compensation), in each case commitment to which the Company is a party or by which it or any of its Employees; or (iii) promise to pay any special bonus or special remuneration assets (whether payable in cash, equity tangible or otherwiseintangible) to any Employee;
(k) are bound or any termination, extension, amendment or modification of the terms of any Material Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective 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;
(ln) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business business, consistent with past practicepractices, including the sale of any accounts receivable of the Company or any of its Subsidiaries Accounts Receivable, or any creation of any security interest in such assets or properties;
(mo) loan by the Company or any of its Subsidiaries to any Person (Person, or purchase by the Company of any debt securities of any Person, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business business, consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personpractices;
(np) except for the Promissory Note, incurrence by the Company 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 obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business business, consistent with past practices;
(oq) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesAccounts Receivable;
(pr) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of Company, its Subsidiaries affairs, or relating to any of their respective 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 of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property owned, developed or created by an third PersonRights (as defined in Section 2.14 hereof);
(ru) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock; , Company Preferred Stock or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Capital Common Stock upon the exercise of Company Options options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlan;
(s) (i) 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 transfer to any Person of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license Company Intellectual Property with any Person or transfer with respect to the Intellectual Property Rights of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; Person, (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, Rights or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any the Intellectual Property owned by or developed or created by Rights of any third Person other than licenses for Shrink-Wrap Code; or Person, (iii) material 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 (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) in pricing or royalties set or charged by Persons who have licensed any Technology or Intellectual Property Rights to the Company or any of its SubsidiariesCompany;
(tw) agreement or modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual PropertyProduct;
(ux) event or condition of any character that has had a Company Material Adverse Effect;
(vy) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property (as defined in Section 2.13 hereof) by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;Company; or
(z) waiver of any stock repurchase rights or rights of first refusalagreement by the Company, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity officer or similar incentive awards (including any long term incentive awards)employees on behalf of the Company, or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under to do any of such plans;
the things described in the preceding clauses (aaa) execution, termination or amendment through (y) of any Employee Agreement this Section 2.10 (other than negotiations with Parent and its representatives regarding the execution of transactions contemplated by this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to ParentRelated Agreements);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
Sources: Merger Agreement
No Changes. Since December Except as set forth in Schedule 3.9, between March 31, 2013, 2002 and the Company and its Subsidiaries have conducted their respective businesses in the ordinary course date of business consistent with past practice and this Agreement there has not been, occurred or arisen any:
(a) modifications, transaction by SMI or any Subsidiary except in the ordinary course of business and consistent with past practice (other than signing of the term sheet providing for this transaction);
(b) amendments or changes to the Charter Documents Articles of Incorporation or the organizational documents Bylaws of any SMI or Subsidiary;
(bc) expenditure, transaction capital expenditures or commitment capital expenditure commitments by SMI or any Subsidiary exceeding $75,000 US$25,000 individually or $150,000 US$100,000 in the aggregate;
(cd) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 US$100,000 in any one case, or $150,000 US$100,000 in the aggregate aggregate, of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, to or loss of any material assets (whether tangible assets or intangible) or material business or loss of the Company any material customer of SMI or any of its Subsidiaries Subsidiary (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claims, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) adoption labor dispute, organizational effort by any union, unfair labor practice charge, wrongful termination charge or employment discrimination charge, or institution or threatened institution of any effort, complaint or other proceeding in connection therewith, involving SMI or any Subsidiary or affecting the operations of SMI or such Subsidiary;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company SMI or any of its SubsidiariesSubsidiary other than as required by GAAP;
(gh) change in any election in respect of Taxes, adoption of or change in any Tax election or accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) revaluation by the Company SMI or any of its Subsidiaries Subsidiary of any of their respective assets (assets, whether tangible or intangible), including writing down except as required by GAAP and as reflected on the value of inventory or writing off notes or accounts receivableCurrent Balance Sheet;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockSMI Common Stock or SMI Preferred Stock (excluding repurchase of SMI Warrants), or any split, combination or reclassification in respect of any shares of Company Capital SMI Common Stock or SMI Preferred Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital SMI Common Stock or SMI Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company SMI of any shares of Company Capital SMI Common Stock or SMI Preferred Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor) (excluding repurchase of SMI Warrants), except in accordance with the agreements evidencing SMI Options or as contemplated by the transaction set forth in this Agreement;
(ik) other than material increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by SMI or any Subsidiary to any Employee; (ii) of their respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company SMI or any of its Subsidiaries Subsidiary of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundsuch person;
(l) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company SMI or any Subsidiary or any creation of its Subsidiaries any security interest in such material assets or material properties;
(m) loan by SMI or any Subsidiary to any person or entity, incurring by SMI of any indebtedness (other than trade payables incurred in the ordinary course of business consistent with past practice), including the guaranteeing by SMI or any Subsidiary of any indebtedness, issuance or sale of any accounts receivable debt securities of the Company SMI or any of its Subsidiaries Subsidiary or any creation guaranteeing of any security interest in such assets or properties;
(m) loan by the Company or any debt securities of its Subsidiaries to any Person (others, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personpractices;
(n) except for the Promissory Note, incurrence by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company affirmative 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) knowing waiver or release of any material right or claim of the Company SMI or any of its SubsidiariesSubsidiary, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company SMI or any of its SubsidiariesSubsidiary;
(po) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, or threat of any lawsuit or proceeding or other investigation against the Company SMI or any of its Subsidiaries Subsidiary or relating to any of their respective businessesaffairs, properties or assets;
(q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire reasonable basis for any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(sp) (i) sale, lease, license event or transfer condition of any Company Intellectual Property (character that has been or the execution, modification or amendment of any agreement with respect is reasonably likely to be materially adverse to the salebusiness, leaseassets (whether tangible or intangible), license financial condition, results of operations or transfer capitalization of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company SMI and its Subsidiaries, taken as a whole;; or
(xq) adoptionagreement by SMI, termination any Subsidiary or amendment any officer or employee on behalf of SMI or such Subsidiary to do any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase the things described in the rights to indemnification preceding clauses (a) through (p) of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 3.9 (other than negotiations with Feiya and its representatives regarding the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parenttransactions contemplated by this Agreement);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
Sources: Acquisition Agreement (Silicon Motion Technology CORP)
No Changes. Since December 31the date of the Interim Financial Statements, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has or have not been, occurred or arisen any:
(a) modificationstransaction 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 practices;
(b) amendments or changes to the Company Constitution or Subsidiary Charter Documents or the organizational documents of any SubsidiaryDocuments;
(bc) expenditure, transaction capital expenditure or commitment by the Company or any Subsidiary exceeding $75,000 5,000 individually or $150,000 15,000 in the aggregate;
(cd) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 5,000 in any one case, or $150,000 15,000 in the aggregate aggregate, of any Liabilityclaim, Liability or obligation (absolute, accrued, asserted, unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction of claims, liabilities and obligations in the ordinary course of business consistent with past practice or of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateFinancial Statements;
(de) destruction of, damage to, or loss of any material assets with a book value in excess of $5,000 (whether tangible assets or intangible) of the Company or any of its Subsidiaries (Subsidiary, whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claims, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) adoption actual, pending or threatened claims by or on behalf of Company Personnel, including any claims relating to termination of employment, workers compensation, illness, negligence, discrimination, bullying, sexual harassment, wage, salary or superannuation claims;
(g) change in accounting methods methods, principles or practices (including any change in depreciation or amortization policies or rates) by the Company or 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 Subsidiariespayment or collection practices;
(gh) change in any material election in respect of Taxes, adoption of or change in any Tax election or material accounting methodmethod in respect of Taxes, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, 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;
(hi) revaluation by the Company or any of its Subsidiaries Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefortherefor except as contemplated by this Agreement);
(ik) other than 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 ordinary course of business consistent with past practiceaggregate, whether or not covered by insurance;
(l) an increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits base salary or other compensation (including equity based compensation) payable or to become payable by the Company or any Subsidiary to any Employee; (ii) declarationCompany Personnel, payment or the promise, payment, commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries Subsidiary of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch Person;
(km) entering into of any material Contract to which the Company or any Subsidiary is a party or by which they or any of their respective assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any Material material Contract to which the Company or any of its Subsidiaries Subsidiary is a party or by which it or any of their respective its assets are bound;
(ln) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiary, including the sale of any accounts receivable of the Company or any of its Subsidiaries receivable, or any creation of any security interest in any such material assets or material properties;
(mo) any outstanding loan by the Company or any of its Subsidiaries Subsidiary to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice)Person, forgiveness incurring by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company Subsidiary of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries Subsidiary of any Indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries Subsidiary or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees Company Personnel for travel and business expenses incurred in the ordinary course of business consistent with past practicesbusiness;
(op) the granting of any waiver or release of any material right or claim of by the Company or any Subsidiary of its Subsidiariesany right or claim material to the Company or any Subsidiary, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesSubsidiary;
(pq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat any Subsidiary or the Stockholders, threat, of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assetsSubsidiary;
(qr) notice of any claim or potential claim of ownership, interest or right ownership by any Person other than the Company or one of its Subsidiaries any Subsidiary of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third 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 Intellectual Property;
(rs) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract to issue or Contract to issue, grant, deliver, sell or purchasesell, by the Company or any Subsidiary of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Stock or (ii) any subscriptionsstock, or any securities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(st) (i) sale, lease, sale or license by the Company or transfer any Subsidiary of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property, (ii) purchase or license by the execution, modification Company or amendment any Subsidiary of any Intellectual Property or execution of any agreement with respect to the sale, lease, license or transfer Intellectual Property of any Company Intellectual PropertyPerson, (iii) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property agreement by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party Subsidiary with respect to the development of any Intellectual Property owned by or developed or created by any with a third Person other than licenses for Shrink-Wrap Code; party, or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries Subsidiary to its customers or licensees; licensees or (B) in pricing or royalties set or charged by Persons who have licensed any Intellectual Property to the Company or any Subsidiary, except in the case of its Subsidiariesclause (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 Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing development or similar rights of any type or scope with respect to any products or technology of the Company Products or Company Intellectual Propertyany Subsidiary;
(uv) any event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;; or
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating withSubsidiary, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, unionofficer, employee or workers’ representatives, group on behalf of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action Subsidiary, to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or do any of its Subsidiaries the things described in the ordinary course preceding clauses (a) through (v) of business consistent with past practice;this Section 2.9.
Appears in 1 contract
No Changes. Since December 31Except as provided in Section 2.10 of the Disclosure Schedule, 2013since the Balance Sheet Date through the date of this Agreement, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modificationstransaction by the Company except in the ordinary course of business, consistent with past practices, as conducted on the Balance Sheet Date;
(b) amendments or changes to the Charter Documents or of the organizational documents of any SubsidiaryCompany;
(bc) expenditure, transaction third party capital expenditure or commitment by the Company exceeding $75,000 individually or $150,000 50,000 in the aggregate;
(cd) payment, discharge, waiver discharge or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than (i) payments, discharges or satisfactions in the ordinary course of business business, consistent with past practice practices, of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities (ii) incurred in the ordinary course of business business, consistent with past practice practices, since the Balance Sheet Date;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), or loss of any material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claims, charges, grievances or matters claims raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(fg) 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 SubsidiariesCompany;
(gh) adoption of or change in any Tax (as defined in Section 2.11) election or any Tax accounting method, entry entering into any Tax allocation agreementclosing agreement with respect to Taxes, Tax sharing agreement, Tax indemnity agreement settlement or closing agreement, agreement 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;
(hi) material revaluation by the Company or of any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Common Stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(ik) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company to any Employee; (ii) of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(kl) any terminationentry into a Material Contract, extensiontermination or extension of a Material Contract, or a material amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundContract;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business business, consistent with past practicepractices, including the sale of any accounts receivable of the Company or any of its Subsidiaries Company, or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (person or entity, or purchase by the Company of any debt securities of any person or entity, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business business, consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personpractices;
(no) except for the Promissory Note, incurrence by the Company of any Indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business business, consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any material account receivable of the Company by the Company or any of its SubsidiariesCompany;
(pq) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assetsCompany;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one of its Subsidiaries a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other person’s Intellectual Property owned, developed or created by an third PersonRights (as defined in Section 2.14 hereof);
(rs) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Common Stock or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of options under the Plan and issuances of Company Options or Company Capital Common Stock upon the exercise of Company Options options issued under the Plan and set forth in Section 3.2(dPlan;
(t) of the Disclosure Schedule;
(s) 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, lease, sale or license or transfer of any Company Intellectual Property (to, or the execution, material modification or material amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; Property with, any person or entity, (ii) purchase or license of any third-party Intellectual Property by the Company or any of its SubsidiariesRights from, or execution, material modification or material amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any third-party Intellectual Property owned by Rights with, any person or developed entity, (iii) agreement, or created by 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 Person other than licenses for Shrink-Wrap Code; party, or (iiiiv) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers licensees, or licensees; in pricing or (B) Persons royalties set or charged by persons who have licensed any Content & Technology or Intellectual Property Rights to the Company or any of its SubsidiariesCompany;
(tu) agreement or material modification to any Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual PropertyProduct;
(uv) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(vw) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property (as defined in Section 2.13 hereof) by the Company or any of its Subsidiaries;Company; or
(wx) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or to do any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or the things described in the aggregate, to the Company and its Subsidiaries, taken as a whole;
preceding clauses (xa) adoption, termination or amendment through (w) of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 2.10 (other than the execution of this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of Related Agreements to which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employeeis a party), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
No Changes. Since December 31the date of the Current Balance Sheet, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modifications, amendments commitment or changes to the Charter Documents or the organizational documents of any Subsidiary;
(b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregate;
(c) payment, discharge, waiver or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liability, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date;
(d) destruction of, damage to, or loss of any material tangible assets of by the Company or any of its Subsidiaries (whether or not covered by insurance), or except in the loss ordinary course of any material business or material customeras conducted on that date and consistent with past practices;
(eb) employment claimsamendment or change to the Articles of Incorporation, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union Bylaws or other labor organization regardingorganizational documents, claiming or alleging an unfair labor practiceas the case may be, wrongful discharge or any other unlawful employment or labor practice or action with respect to of the Company or any of its Subsidiaries;
(c) change in the Company’s or any of its Subsidiaries authorized capital structure;
(d) capital expenditures, lease commitments or capital commitments by the Company or any of its Subsidiaries, either individually exceeding $100,000 or in the aggregate exceeding $200,000;
(e) payment, discharge or satisfaction by the Company or any of its Subsidiaries, in any amount in excess of $100,000 in any one case or $200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction (i) of any Borrowed Money Indebtedness, or (ii) in the ordinary course of business of other liabilities reflected or reserved against in the Current Balance Sheet, or arising thereafter in the ordinary course of business;
(f) adoption destruction of, damage to or loss of any Assets (whether or not covered by insurance), in excess of $200,000 in the aggregate;
(g) revaluation by the Company or any of its Subsidiaries of any of their respective Assets;
(h) change, event or effect that has had a Material Adverse Effect on the Company or any of its Subsidiaries;
(i) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries, including, but not limited to, any change made in accordance with GAAP;
(gj) change in any election material with respect to Taxes, adoption of or change in any Tax election or material accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes, or material amendment or change of any Return;
(h) revaluation by the Company or any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ik) declaration, setting aside or payment of a dividend or other distribution (whether with respect to the shares in cashthe capital of the Company, stock or property) in respect of any Company Capital Stock, any split, combination or reclassification in respect of any shares in the capital of Company Capital Stockthe Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares in the capital of Company Capital Stockthe Company, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company of any shares in the capital of the Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the Company Share Option Plan;
(il) increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its officers, directors or employees (other than increases in the ordinary course of business consistent with past practice, increase in, decrease in for employees who are not executive officers) or other change to the salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable to any Employee; (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) payment, by the Company or any of its Subsidiaries Subsidiaries, of a severance payment, termination payment, change of in control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch Person except as otherwise contemplated by this Agreement;
(km) any terminationtermination by the Company (other than expiration in accordance with its terms), extensionextension by the Company (other than renewal in accordance with its terms), material amendment or material modification of the terms of any Material Contract to which set forth on the Company or any Disclosure Schedules other than in the ordinary course of its Subsidiaries is a party or by which it or any of their respective assets are boundbusiness consistent with past practices;
(ln) sale, lease, assignment, license or other disposition of any of the assets (whether tangible or intangible) or properties Assets of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries or any creation of any security interest in such assets or propertiespractices;
(mo) loan by the Company or any of its Subsidiaries to or capital investment in any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice)Person, forgiveness incurring by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except indebtedness for the Promissory Note, incurrence by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreementborrowed money, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness for borrowed money of others, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(pq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets;
(qr) notice of any claim issuance or potential claim of ownershipsale, interest or right by any Person other than the Company contract or one of its Subsidiaries of the Company Intellectual Property agreement to issue or of infringement sell, by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by of shares in the capital of the Company or securities exchangeable, convertible or exercisable therefor, or of any other of its Subsidiariessecurities, except for, in the case of (i) any the Company, issuances or sales of shares in the capital of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Share Options issued under the Plan and set forth in Section 3.2(d) or Company Warrants outstanding as of the Disclosure Scheduledate of this Agreement;
(s) transfer or license to or from any Person any Intellectual Property Rights (i) sale, lease, license or transfer of including any Company Intellectual Property (Property) or the execution, modification entry into or amendment of any agreement with respect to the sale, lease, license or transfer of any Person regarding any Intellectual Property Rights (including any Company Intellectual Property), except in the ordinary course of business consistent with past practice or (ii) other than non-exclusive end user licenses granted agreement with respect to the development of any Intellectual Property with a third party or amendment of any such agreement except in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; licensees or (B) Persons in pricing or royalties set or charged by persons who have licensed any Intellectual Property or Intellectual Property Rights to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract material agreement pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing development or similar rights of any type or scope with respect to any products or services of the Company Products or any of its Subsidiaries or Company Intellectual Property;
(u) a Company Material Adverse Effect;failure to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith; or
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually officer or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment employee on behalf of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries to do any of the things described in the ordinary course of business consistent with past practice;preceding clauses (a) through (u).
Appears in 1 contract
Sources: Transaction Agreement (Avocent Corp)
No Changes. Since December 31the Balance Sheet Date, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen arisen, other than in connection with this Agreement and the Merger, any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any the Subsidiary;
(bc) expenditure, transaction capital expenditure or capital commitment exceeding $75,000 10,000 individually or $150,000 50,000 in the aggregate;
(cd) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 5,000 in any one case, or $150,000 10,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected liabilities recorded or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries Subsidiary (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesSubsidiary;
(fg) 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 SubsidiariesSubsidiary;
(gh) adoption of or change in any Tax material election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) revaluation by the Company or any of its Subsidiaries Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of inventory intangible assets or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend or other any distribution (whether in cash, stock cash or property) in respect of any Company Capital StockUnits, any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockUnits, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock Units (or 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) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiary to any Employee; of their officers, employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries Subsidiary of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any such Person, other than the declaration and payment of its Employees; 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) promise to pay adoption or amendment of any special bonus Company Employee Plan, or special remuneration (whether payable in cash, equity execution or otherwise) to amendment of any EmployeeEmployee Agreement;
(kl) 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 Material Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries Subsidiary is a party or by which it or any of their respective assets are is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiary, including the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiary, or any creation of any security interest in such assets or properties;
(mn) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan Subsidiary to any Person, or purchase by the Company or any of its Subsidiaries Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from agreement;
(o) incurring by the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company Subsidiary of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries Subsidiary of any Indebtednessadditional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries Subsidiary or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its SubsidiariesSubsidiary, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesSubsidiary;
(pq) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesSubsidiary, or the commencement, settlement, notice or, to the Knowledge of the Company, or threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries Subsidiary or relating to any of their respective its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or any of its Subsidiaries Subsidiary of any other Person’s Intellectual Property owned, developed or created by an third Personrights to music or other content;
(rs) issuance, grant, delivery, sale or purchase, or proposal proposal, contract or Contract agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesSubsidiary, of (i) any shares of Company Capital Stock Units or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Units, or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(st) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Company Intellectual Property Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or the license of any music or other content or execution, modification or amendment of any agreement with respect to the sale, lease, license music or transfer other content of any Company Intellectual PropertyPerson, (iii) other than non-exclusive end user licenses granted agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in the ordinary course of business consistent with past practice; (ii) purchase pricing set or license of any Intellectual Property charged by the Company or any its Subsidiary for the license, purchase or use of its Subsidiaries, the Content or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property conveyed Content to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into property or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its SubsidiariesSubsidiary;
(w) acquisition by the Company or any of its Subsidiaries of, Subsidiary or agreement by the Company or any of its Subsidiaries 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 and or its Subsidiaries, taken as a wholeSubsidiary;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its SubsidiariesSubsidiary;
(ccy) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; Unvested Units;
(ddz) hiring (including any change of status from an independent contractor to an employee)hiring, promotion, demotion or termination or any other change to the employment status or title of any Employees;
(aa) cancellation, excluding independent contractors who ceased performing services for amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of its Subsidiaries the things described in the ordinary course preceding clauses (a) through (aa) of business consistent this Section 2.10 (other than negotiations with past practice;Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since December 31Except as expressly contemplated by this Agreement, 2013or other than as set forth in Section 2.11 of the Disclosure Schedule, since the Balance Sheet Date, each of the Company and its Subsidiaries have conducted their respective businesses has operated the Business only in the ordinary course of business consistent with past practice and there has not been, occurred or arisen any:
(a) modifications, amendments transaction by the Company or changes its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendment or change to the Charter Documents or the organizational documents Subsidiary Charter Documents; EXECUTION VERSION
(c) amendment of any Subsidiaryterm of any outstanding security of the Company or its Subsidiaries;
(bd) expenditure, transaction or commitment by the Company or its Subsidiaries exceeding $75,000 individually or $150,000 75,000 in the aggregateaggregate with respect to any single Person;
(ce) payment, discharge, waiver or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaries), other than payments, discharges discharges, waivers or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(df) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(eg) material employment claimsdispute, chargesincluding but not limited to, grievances claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employees' representative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(fh) 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 SubsidiariesSubsidiaries other than as required by GAAP;
(gi) change in any material election in respect of Taxes (as defined in Section 2.13(a) hereof), adoption of or change in any Tax election or accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hj) revaluation by the Company or any of its Subsidiaries of any of their respective material assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(ik) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company or its Subsidiaries of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(il) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiaries to any Employee; (ii) of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any such person; EXECUTION VERSION
(m) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiaries is a party or by which they or any of its Employees; or (iii) promise to pay any special bonus or special remuneration their assets (whether payable in cash, equity tangible or otherwiseintangible) to any Employee;
(k) are bound or any termination, extension, amendment or modification of the terms of any Material Contract agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it they or any of their respective assets are bound, other than in the ordinary course of business;
(ln) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiaries, or any creation of any security interest in such assets or properties, other than non-exclusive licenses of the Company Products by the Company or its Subsidiaries in the ordinary course of business;
(mo) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person Person, or amendment capital contributions to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to investment in any Person;
(np) except for the Promissory Note, creation or other incurrence by the Company or its Subsidiaries of any IndebtednessLien on any of its asset, except for Liens for Taxes not yet due and payable;
(q) incurring by the Company or its Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(or) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries, other than in the ordinary course of business;
(ps) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, or the commencement, settlement, notice or, to the Knowledge of the Company, or written threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assetsaffairs;
(qt) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company in or one of its Subsidiaries of to the Intellectual Property (as defined below) owned by the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any other Person's Intellectual Property owned, developed or created by an third Person(as defined below);
(ru) issuance, grant, delivery, delivery or sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; , or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, sale or license or transfer of any Company Intellectual Property (owned by the Company or the execution, modification or amendment execution of any agreement with respect to Intellectual Property owned or exclusively licensed by the saleCompany with any Person, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment execution of any agreement to which the Company or any of its Subsidiaries is a party with respect to the Intellectual Property of any Person, (iii) agreement with respect to the development of any Intellectual Property owned by or developed or created by any with a third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries ofparty, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;EXECUTION VERSION
Appears in 1 contract
No Changes. Since December March 31, 20131999, except as disclosed in Section 2.9 of the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and Disclosure Schedule, there has not been, occurred or arisen any:
(a) modifications, amendments or changes to transaction by the Charter Documents Company or the organizational documents Subsidiary except in the ordinary course of any Subsidiarybusiness as conducted on that date and consistent with past practices;
(b) expenditure, transaction capital expenditure or commitment by the Company or the Subsidiary exceeding $75,000 25,000 individually or $150,000 100,000 in the aggregate;
(c) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 25,000 in any one case, or $150,000 100,000 in the aggregate aggregate, of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in arising after the ordinary course of business consistent with past practice since the Balance Sheet Datedate thereof;
(d) destruction of, material damage to, to or the loss of any material tangible assets assets, material business or material customer of the Company or any of its Subsidiaries the Subsidiary (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claims, charges, grievances collective work stoppage or matters raised by any individual, Governmental Entity, works council, employee labor strike or workers’ representatives, group claim of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiariesaction;
(f) 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 Subsidiariesthe Subsidiary other than as required by GAAP;
(g) change in any material election in respect of Taxes (as defined below), adoption of or change in any Tax election or accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(h) revaluation by the Company or any of its Subsidiaries the Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivableassets;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, Stock or any split, combination or reclassification in respect of any shares of Company Capital Stock, Stock or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or by the Subsidiary of Subsidiary Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Warrants;
(ij) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or the Subsidiary to any Employee; of its officers, directors, employees or advisors (ii) other than, in the case of employees who are not officers or directors, increases in salary in the ordinary course consistent with past practice that do not exceed $5,000 per year), or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) payment, by the Company or any of its Subsidiaries the Subsidiary, of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(k) other than those entered into in the ordinary course of business consistent with past practice, any terminationmaterial agreement, extensioncontract, amendment covenant, instrument, lease, license or modification of the terms of any Material Contract commitment to which the Company or any of its Subsidiaries 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 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 they or any of their respective assets are bound;
(l) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiary or any creation of any security interest in such material assets or material properties;
(m) loan by the Company or any of its Subsidiaries the Subsidiary to any Person (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 reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Personpractices;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) waiver or release of any material right or claim of the Company or any of its Subsidiariesthe Subsidiary, including any waiver, release write-off or other compromise of any account receivable of the Company by or the Company Subsidiary;
(o) any event or condition of any of its Subsidiaries;character that has had or is reasonably likely to have a Material Adverse Effect; or
(p) commencement agreement by the Company, the Subsidiary or settlement any officer or employees on behalf of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, the Subsidiary to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets;
(q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire do any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted things described in the ordinary course of business consistent with past practice; preceding clauses (iia) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
through (u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parenttransactions contemplated by this Agreement);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Probusiness Services Inc)
No Changes. Since December 31, 2013, Except as set forth in Section 2.9 of the Company and its Subsidiaries have conducted their respective businesses in Disclosure Schedule or as contemplated by this Agreement or the ordinary course of business consistent with past practice and Related Agreements, since the Balance Sheet Date, there has not been, occurred or arisen any:
(a) modifications, amendments transaction by the Company or changes to any of its Subsidiaries except in the Charter Documents or the organizational documents ordinary course of any Subsidiarybusiness as conducted on that date and consistent with past practices;
(b) expenditure, transaction amendments or changes to any of the Company Charter Documents or Subsidiary Charter Documents;
(c) capital expenditure or commitment by the Company or any of its Subsidiaries exceeding $75,000 30,000 individually or $150,000 70,000 in the aggregate;
(cd) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 30,000 individually or $150,000 70,000 in the aggregate aggregate, of any Liabilityclaim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(ef) employment claimsdispute, chargesincluding but not limited to, grievances claims or matters raised by any individual, Governmental Entity, works council, employee individuals or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(fg) 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 SubsidiariesSubsidiaries other than as required by GAAP;
(gh) adoption of or change in any Tax material election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) revaluation by the Company or any of its Subsidiaries of any of their respective its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(ij) declaration, setting aside or payment of a dividend on, or other distribution (whether in cash, stock or property) in respect of of, any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchasepurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(ik) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of the Subsidiaries to any Employee; (ii) of their respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any such person, except to non-officer level employees in the ordinary course of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundbusiness as conducted consistent with past practices;
(l) sale, lease, license or other disposition (other than in the ordinary course of business consistent with past practices) of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiaries, or any creation of any security interest in such assets or properties;
(m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice)person or entity, forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person person or amendment to the terms of any outstanding loan agreement relating to any loan from entity;
(n) incurring by the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their affairs, or any reasonable basis for any of their respective businesses, properties or assetsthe foregoing;
(q) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one any of its Subsidiaries of the Company Intellectual Property Rights (as defined in Section 2.13 hereof) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other person’s Intellectual Property owned, developed or created by an third Person(as defined in Section 2.13 hereof);
(r) issuance, grant, delivery, sale issuance or purchasesale, or proposal contract or Contract agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, Subsidiaries of (i) any shares of Company Capital Stock or shares of Capital Stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Stock or (ii) shares of Capital Stock of any subscriptionsof its Subsidiaries, or any securities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Options or Company Warrants reflected on Section 2.2(b) of the Company Disclosure Schedule or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure SchedulePlan;
(s) (i) sale, lease, sale or license or transfer of any Company Intellectual Property (other than nonexclusive licenses of products to customers in the ordinary course of business consistent with past practices) or the execution, modification or amendment of any agreement with respect to the sale, lease, license Company Intellectual Property Rights with any person or transfer entity or with respect to the Intellectual Property or Intellectual Property Rights of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; person or entity, (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, Intellectual Property Rights or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any the Intellectual Property owned by or developed Intellectual Property Rights of any person or created by any third Person other than licenses for Shrink-Wrap Code; or entity, (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights amendment of any type or scope an existing agreement with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale the development of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Intellectual Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as Intellectual Property Rights with a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;third party,
Appears in 1 contract
Sources: Merger Agreement (Nanometrics Inc)
No Changes. Since December 31, 2013, Except as set forth on Section 5.18 of the Company and its Subsidiaries have conducted their respective businesses in Disclosure Schedule or as expressly contemplated by this Agreement, since the ordinary course of business consistent with past practice and Balance Sheet Date, there has not been, occurred or arisen any:
(a) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary;
(b) expenditure, transaction capital expenditure or commitment or other payment obligation by the Company exceeding $75,000 50,000 individually or $150,000 200,000 in the aggregate;
(cb) payment, discharge, waiver discharge or satisfaction in any amount in excess of $75,000 or $150,000 in by the aggregate Company of any claim or Liability, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet as required under the Contract relating to such Liability or with respect to Liabilities trade payables incurred in the ordinary course of business consistent with past practice since business;
(c) 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 Balance Sheet DateCompany;
(d) destruction of, damage to, or loss of any material tangible assets of the Company (whether tangible or intangible) having a replacement value in excess of $25,000 or any material business or Customer of its Subsidiaries the Company (in each case, whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claims, charges, grievances or matters raised adoption by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or of any of its Subsidiaries;
(f) adoption new accounting method or 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 or of any new Tax election inconsistent with the Company’s prior course of its Subsidiaries;
(g) adoption of or practice, change by the Company in any Tax election or accounting methodelection, entry amended Tax Returns filed by the Company, new Contract entered into any Tax allocation agreementinvolving the Company with respect to Taxes, Tax sharing agreement, Tax indemnity agreement or closing agreement, 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 or the filing by the Company of any Tax Return, change in respect Tax residence of Taxes;
(h) revaluation by the Company or any other action taken outside the ordinary course of its Subsidiaries business that would have the effect of increasing the Tax liability of the Company for any of their respective assets Tax period (whether tangible or intangible), including writing down portion thereof) beginning after the value of inventory or writing off notes or accounts receivableClosing Date;
(ig) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockSecurities, or any split, combination or reclassification in respect of any shares of Company Capital StockSecurities, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares Company Securities (other than Company Securities issued upon the exercise or conversion of Company Capital Stockthe Convertible Securities), or any direct or indirect repurchase, redemption, or other acquisition by the Company of of, or any shares of issuance of, any Company Capital Stock Securities (or options, warrants or other rights convertible into, exercisable or exchangeable therefor)for Company) or any equity appreciation, phantom equity or similar rights;
(h) resignation or removal of any officer, director or manager of the Company;
(i) other than in the ordinary course adoption, amendment or termination of business consistent with past practiceany Benefit Plan, increase inor adopting any new employee benefit plan, decrease in arrangement or other agreement (including any such plan, arrangement or agreement providing for retention, change to the salaryof control, wage ratesseverance or similar payments or potential payments);
(j) made or granted any bonus or any wage, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable to any Employee; (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) increase to any Employee;
(k) implemented any terminationlocation closing or other layoff of employees that could implicate the Worker Adjustment Retraining and Notification Act, extension29 U.S.C. § 2101 et seq., amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party similar state or by which it or any of their respective assets are boundlocal Laws (collectively, the “WARN Act”);
(l) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiaries other than in the ordinary course of business consistent with past practiceof the Company, including the sale of any accounts receivable of the Company or any of its Subsidiaries Accounts Receivable, or any creation of any security interest in such assets or properties;
(m) loan by the Company to any Person, or purchase by the Company of any debt securities of any Person, or guarantee any of its Subsidiaries to the foregoing of any Person (Person, except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by of the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any PersonCompany;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable Accounts Receivable, or change in practices or procedures with respect to the collection of the Company by the Company Accounts Receivable or extension of any of its Subsidiariesother incentive with respect thereto;
(po) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice written or, to the Knowledge of the Company, other notice or threat of any lawsuit or proceeding adverse change in the relationship between the Company and its customers, suppliers or other vendors;
(p) commencement or settlement by the Company of any lawsuit, or the commencement of any lawsuit, investigation or similar proceeding against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assetsCompany;
(q) increase in any wage, salary, bonus or other compensation of any officer, employee, director, representative or consultant of the Company;
(r) employment dispute, including claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action or violation of Law, in each case with respect to the Company;
(s) written notice of any claim or potential claim of ownership(i) ownership of, interest in or right by to any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by any Person (other than the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(rCompany) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) infringement, misuse, or misappropriation by the Company of any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Scheduleother Person’s Intellectual Property Rights;
(st) (i) sale, lease, license license, assignment, or transfer by the Company to any Person of any Company Intellectual Property (or the execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company is a party with respect to the sale, lease, license Company Intellectual Property with any Person or transfer with respect to the Intellectual Property of any Company Intellectual Property) other than non-exclusive Person, in each case, excluding standard end user licenses granted and Contracts and similar Contracts entered into in the ordinary course of business consistent with past practice; of the Company, (ii) purchase purchase, assignment, or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company or any of its Subsidiaries is a party with respect to any the Intellectual Property owned by or developed or created by of any third Person other than licenses for Shrink-Wrap Code; or Person, (iii) material change in pricing new Contract or royalties set termination, modification, or charged by (A) 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 or (iv) lapse, expiration, abandonment or any other disposition of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Company Intellectual Property to the Company or any of its SubsidiariesProperty;
(tu) agreement entering into a Contract or material modification to any Contract pursuant to which any other party is or was granted design, development, use, import, branding, advertising, promotion, marketing, distribution, developmenttesting, deliverypackaging, labelling, manufacturing or similar selling rights of any type or scope with respect to any Company Products or Company Intellectual Property;
product (u) a Company Material Adverse Effectincluding the AMDS), except in the ordinary course of business of the Company;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its SubsidiariesCompany;
(w) acquisition change 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 who have licensed Technology or Intellectual Property Rights to the Company, or make any other material change to the terms and conditions (including payment, discount, allowance, warranty or indemnification terms) upon which the Company makes the Company products (including the AMDS) available to third parties, or otherwise;
(x) other transaction outside the ordinary course of business of the Company;
(y) promise, commitment or Contract by the Company, or any Employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (x) of this Section 5.18 (other than negotiations with Buyer and its Subsidiaries ofRepresentatives regarding the transactions contemplated in this Agreement and the Related Agreements); or
(z) event, occurrence of development that has had, or agreement by the Company or any of its Subsidiaries would reasonably be expected 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 materialhave, individually or in the aggregate, to the a Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;Material Adverse Effect.
Appears in 1 contract
No Changes. Since December 31, 2013, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary;
(b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregateexcept as expressly contemplated by this Agreement;
(c) payment, discharge, waiver or satisfaction in any amount in excess of $75,000 or $150,000 in the aggregate of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(d) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or loss of a material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor disputes or other labor organization regarding, claiming or alleging an unfair labor practice, claims of wrongful discharge or any other unlawful employment or labor practice or action with respect to by the Company or any of its SubsidiariesCompany;
(f) adoption of or change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company or any of its SubsidiariesCompany;
(g) making of or change in any Tax election, adoption of or change in any Tax election or accounting method, entry into settlement or compromise of any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, agreement or settlement of any claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment in respect of Taxesassessment;
(h) revaluation by the Company or any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practicepractices that do not materially differ in substance from the Standard Form Agreements;
(k) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(l) waiver or release of any material right or claim of the Company;
(m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in, in or decrease in or other change to the salary, wage rates, bonuses bonuses, or fringe benefits or other compensation (including equity equity-based compensation) payable or to become payable by the Company to any Employee; Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or , (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(l) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries or any creation of any security interest in such assets or properties;
(m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets;
(q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(xiv) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works councilPlan, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will at‑will offer letter and proprietary information and invention assignment letter) or collective bargaining agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(ccs) any action to accelerate the vesting schedule or extend the post-termination post‑termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (ddt) hiring (including circumstance, change, event or effect of any change of status from an independent contractor character that has had or is reasonably likely to an employee), promotion, demotion or termination or any other change have a Material Adverse Effect with respect to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;Company; or
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since December 31the Balance Sheet Date, 2013except as expressly permitted under, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and required or specifically consented to by Parent pursuant to Section 4.1 hereof, there has not been, occurred or arisen any:
(a) material transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary;
(bc) expenditure, transaction or commitment exceeding $75,000 25,000 individually or $150,000 any commitment or transaction of the type described in Section 2.13 hereof in any case by the aggregateCompany or any of its Subsidiaries;
(cd) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 25,000 in any one case, or $150,000 250,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date;
(d) destruction of, damage to, or loss of any material tangible assets of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customerSheet;
(e) Deleted;
(f) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(fg) 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 SubsidiariesSubsidiaries other than as required by GAAP;
(gh) adoption of or change in any Tax election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(hi) revaluation by the Company or any of its Subsidiaries of any of their respective its assets (whether tangible or intangible), including except for the writing off or down of the value of inventory or writing off of notes or accounts receivable, fixed assets and investments in Subsidiaries;
(ij) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Unvested Shares or the Related Agreements;
(ik) other than except as expressly provided for in the ordinary course of business consistent with past practicethis Agreement, an increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employee; (ii) of their respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary compensation to any such person;
(l) Material Contract to which the Company or compensation (including equity based compensation), in each case to any of its Employees; Subsidiaries is a party or (iii) promise to pay by which it or any special bonus or special remuneration of its assets (whether payable in cash, equity tangible or otherwiseintangible) to any Employee;
(k) are bound or any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(lm) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiaries, or any creation of any security interest in such assets or propertiesproperties other than in the ordinary course of business consistent with past practices;
(mn) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice)practices, forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from agreement;
(o) incurring by the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(op) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesVoD Business;
(pq) (i) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or (ii) commencement, settlement, notice or, to the Knowledge of the CompanyCompany or any of its Subsidiaries, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or to the Knowledge of the Company or any of its Subsidiaries, any reasonable basis for any of the foregoing;
(qr) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property owned, developed or created by an third Person;
Property; (rs) issuance, grant, delivery, sale or purchase, or proposal proposal, contract or Contract agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; Stock or (ii) shares of capital stock of any of its Subsidiaries, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for (i) issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification conversion of Company Preferred Stock or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property prior to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreementdate hereof, the forms grant of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any restricted Company Common Stock or any similar equity awards; (dd) hiring (including any change options to purchase Company Common Stock to employees of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in under the ordinary course of business consistent with past practicePlan;
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
No Changes. Since December 31, 20132014 and prior to the date hereof, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and except as expressly permitted hereunder, 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 practices;
(b) modifications, amendments or changes to the Charter Documents or the any organizational documents of any Subsidiary;
(b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregateof its subsidiaries except as expressly contemplated by this Agreement;
(c) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 25,000 individually or $150,000 100,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of the Company or of any of its subsidiaries, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(d) destruction of, damage to, or loss of any material tangible assets of the Company or any of its Subsidiaries subsidiaries (whether tangible or intangible), material business of the Company or any subsidiary of the Company or loss of a material customer of the Company or any of its subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor disputes or other labor organization regarding, claiming or alleging an unfair labor practice, claims of wrongful discharge or any other unlawful employment or labor practice or action with respect to by the Company or any of its Subsidiariessubsidiaries;
(f) adoption of or material change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company or any of its Subsidiariessubsidiaries;
(g) making of or change in any material Tax election, adoption of or change in any Tax election or accounting method, entry into settlement or compromise of any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, agreement or settlement of any claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment in respect of Taxesassessment;
(h) revaluation by the Company or any of its Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or capital stock of any of the Company’s subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or capital stock of any of the Company’s subsidiaries, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or any capital stock of the Company’s subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company or any of its subsidiaries of any shares of Company Capital Stock or capital stock of any of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract by the Company or any of its subsidiaries not required by the terms thereof or (ii) breach of or default under any Material Contract by the Company or any of its subsidiaries or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute such a breach or default;
(j) sale, lease, sublease, license 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 of its subsidiaries, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of or agreements to provide (on a hosted basis) Intellectual Property Rights granted by the Company (not including any rights in Company Source Code) in the ordinary course of business consistent with past practicepractices;
(k) loan by the Company or any of its subsidiaries to any Person, incurring by the Company or any of its subsidiaries of any Indebtedness for borrowed money, guaranteeing by the Company or any of its subsidiaries of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(l) waiver or release of any material right or claim of the Company or any of its subsidiaries;
(m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs or any of its subsidiaries and its affairs;
(n) except as set forth in Section 2.2 of the Disclosure Schedule, issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries (i) any shares of Company Capital Stock or shares of capital stock of any of the Company’s subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any subsidiaries of the Company, or (ii) any securities, warrants, options or rights to purchase any of the foregoing;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company or any of its subsidiaries of Company IP or of infringement by the Company or any of its subsidiaries of any other Person’s Intellectual Property Rights;
(p) change in pricing or royalties set or charged by the Company or any of its subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its subsidiaries (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company or any of its subsidiaries, promotion, demotion or other change to the employment status or title of any officer of the Company or resignation or removal of any director of the Company or any of its subsidiaries;
(r) (i) increase in, in or decrease in or other change to the salary, wage rates, bonuses bonuses, or fringe benefits or other compensation (including equity equity-based compensation) payable or to become payable by the Company or any of its subsidiaries to any Employee; Employees (other than in the ordinary course of business and consistent with past practices), (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or , (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(l) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiaries or any creation of any security interest in such assets or properties;
(m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(o) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets;
(q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(xiv) adoption, termination or amendment of any Company Employee Plan Plan, Employee Agreement, any employee plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights related to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement its subsidiaries (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment letter) or collective bargaining agreement, the forms of which have been made available to Parent);
(bbs) execution extension of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change awards of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries subsidiaries;
(t) Material Adverse Effect with respect to the Company and its subsidiaries (taken as a whole); or
(u) 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 ordinary course preceding clauses (a) through (t) of business consistent this Section 2.9 (other than negotiations with past practice;Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since December January 31, 20132006, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 5.1 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of any Subsidiary;
(b) expenditure, transaction or commitment exceeding $75,000 individually or $150,000 in the aggregate;
(c) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $75,000 50,000 in any one case, or $150,000 100,000 in the aggregate aggregate, of any Liabilityclaim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of Liabilities liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheets;
(d) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claimsdispute, charges, grievances including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representatives, group of employeesrepresentative organization, bargaining unit, unit or union regarding labor trouble or other labor organization regarding, claiming or alleging an unfair labor practice, claim of wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) 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 SubsidiariesSubsidiaries other than as required by GAAP;
(g) adoption of or change in any Tax material election in respect of Taxes, adoption or change in any accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreementmethod 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;
(h) revaluation by the Company or any of its Subsidiaries of any of their respective its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or Company Unvested Shares;
(ij) other than in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employee; (ii) of their respective officers, directors or employees, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwiseequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(l) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceSubsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries Subsidiaries, or any creation of any security interest in such assets or properties, except in the ordinary course of business as conducted on that date and consistent with past practices;
(ml) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from agreement;
(m) incurring by the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company of any Indebtednessindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtednessindebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for obligations advances to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(on) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its Subsidiaries;
(po) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or the commencement, settlement, notice or, to the Knowledge of the CompanyCompany or the Principal Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(qp) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or one any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company person’s Intellectual Property;
(uq) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(v) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(wr) acquisition by the Company or any of its Subsidiaries of, Subsidiary or agreement by the Company or any of its Subsidiaries 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 and or its Subsidiaries, taken as a whole;
(xs) adoption, termination grant by the Company or amendment any Subsidiary of any Company Employee Plan severance or collective bargaining agreement termination pay (in cash or other arrangement with otherwise) to any works councilEmployee, unionincluding any officer, employee or workers’ representatives, group of employees or other labor organization;except payments made pursuant to written agreements disclosed in the Disclosure Schedule; or
(yt) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options , or any Company Common Stock officer or any similar equity awards; (dd) hiring (including any change employees on behalf of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries Subsidiaries, to do any of the things described in the ordinary course preceding clauses (a) through (s) of business consistent this Section 2.10 (other than negotiations with past practice;Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
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No Changes. Since December March 31, 20132002, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course except as specifically permitted by any other provision of business consistent with past practice and this Agreement, there has not been, occurred or arisen any:
(a) modifications, amendments or changes to the Charter Documents certificate of incorporation or bylaws of the organizational documents Company or any of any Subsidiarythe Company Subsidiaries;
(b) expenditure, transaction capital expenditure or commitment by the Company or any Company Subsidiary exceeding $75,000 25,000 individually or $150,000 250,000 in the aggregate;
(c) payment, dischargedischarge or satisfaction, waiver or satisfaction in any amount in excess of $75,000 25,000 in any one case, or $150,000 250,000 in the aggregate aggregate, of any liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any type, whether accrued, absolute, contingent, matured or unmatured (a "Liability"), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business consistent with past practice of Liabilities reflected or reserved against in the Current Balance Sheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet DateSheet;
(d) destruction of, damage to, or loss of any material assets (whether tangible assets or intangible), material business of the Company or any of its Subsidiaries Company Subsidiary (whether or not covered by insurance), or the loss of any material business or material customer;
(e) employment claims, charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization regarding, claiming or alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) 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 SubsidiariesCompany Subsidiary other than as required by GAAP;
(gf) (i) change in any material election in respect of Taxes (as defined below), (ii) adoption of or change in any Tax election or accounting methodmethod in respect of Taxes, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, (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;
(hg) revaluation for accounting purposes by the Company or any of its Subsidiaries Company Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(ih) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(i) other than increase in the ordinary course of business consistent with past practice, increase in, decrease in or other change to the salary, wage rates, bonuses or fringe benefits salary or other compensation (including equity based compensation) payable or to become payable by the Company or any Company Subsidiary to any Employee; (ii) of their respective officer or directors or any of its employees with 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 or otherwiseequity) by the Company or any of its Subsidiaries Company Subsidiary of a severance payment, change of control payment, termination payment, bonus, special remuneration bonus or other additional salary or compensation (including equity based compensation), in each case to any of its Employees; or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employeesuch person;
(k) any termination, extension, amendment or modification of the terms of any Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(li) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practiceCompany Subsidiary, including including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries Company Subsidiary, or any creation of any security interest in such assets or 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;
(mj) loan by the Company or any of its Subsidiaries Company Subsidiary to any Person (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 reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) except for the Promissory Note, incurrence by the Company 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(ok) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany Subsidiary, including any waiver, release write-off or other compromise of any account receivable of the Company by the Company or any of its SubsidiariesCompany Subsidiary exceeding $25,000 individually or $250,000 in the aggregate;
(p) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets;
(q) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiaries of the Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any Intellectual Property owned, developed or created by an third Person;
(r) issuance, grant, delivery, sale or purchase, or proposal or Contract to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (il) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(s) (i) sale, lease, license or transfer of any Company Intellectual Property (or the execution, modification or amendment of any agreement with respect to the sale, lease, license or transfer of any Company Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, or execution, modification or amendment of any agreement to which the Company or any of its Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for Shrink-Wrap Code; or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have licensed any Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) a Company Material Adverse Effect;; or
(vm) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Real Property or other real property by the Company or any of its Subsidiaries;
(w) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating withCompany Subsidiary, or by purchasing any assets officer or equity securities ofemployees on behalf of the Company, or by to do 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 of the things described in the aggregate, to the Company and its Subsidiaries, taken as a whole;
preceding clauses (xa) adoption, termination or amendment through (l) of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement this Section 3.8 (other than negotiations with Parent and its representatives regarding the execution of transactions contemplated by this Agreement and the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to ParentRelated Agreements);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(cc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; (dd) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees, excluding independent contractors who ceased performing services for the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;.
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