Operation of the Business of the Company. During the Pre-Closing Period, unless Transcend otherwise consents in writing: (a) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement; (b) the Company shall use reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company; (c) the Company shall keep in full force and effect all insurance policies identified in Schedule 2.25 annexed hereto; (d) the Company shall cause its officers to report regularly to Transcend concerning the status of the Company's business; (e) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, and shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securities; (f) the Company shall not sell, issue or authorize the issuance of (i) any capital stock or other security, (ii) any option, call, warrant or right to acquire, or relating to, any capital stock or other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security; (g) neither the Company nor any of the Shareholders shall amend or permit the adoption of any amendment to the Company articles of incorporation or bylaws, or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; (h) the Company shall not form any subsidiary or acquire any equity interest or other interest in any other Entity; (i) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate; (j) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material Contract, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any material Contract; (k) the Company shall not, other than in the ordinary course of business consistent with past practice (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the Company; (l) the Company shall not (i) lend money to any Person, or (ii) incur or guarantee any indebtedness, except that the Company may make routine borrowings in the ordinary course of business under its respective existing lines of credit; (m) the Company shall not (i) establish, adopt or amend any Plan, (ii) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $25,000; (n) the Company shall not change any of its methods of accounting or accounting practices in any respect; (o) the Company shall not make any Tax election; (p) the Company shall not commence or settle any Legal Proceeding; (q) the Company shall not enter into any material transaction or take any other material action outside the ordinary course of business or inconsistent with its past practices; and (r) the Company shall not agree or commit to take any of the actions described in clauses "(e)" through "(q)" of this Section 4.2.
Appears in 1 contract
Operation of the Business of the Company. During Except with the Pre-Closing Periodprior written consent of Purchaser, unless Transcend otherwise consents in writingcommencing on the date hereof and continuing through the Closing:
(a) the Company shall conduct its business and operations in the ordinary course Ordinary Course, and may not (i) expand the scope of the Business, or (ii) engage in substantially any business activity other than as contemplated under the same manner as such business Collaboration Agreement and operations have been conducted prior to the date of this License Agreement;
(b) the Company shall use all reasonable efforts to preserve intact its current business organizationsthe Business, keep available the services of its current officers and employees Key Employees and maintain its relations and goodwill good will with all suppliers, customers, landlords, creditors, employees creditors and other Persons persons having material business relationships with the Company;
(c) the Company’s officers shall provide Purchaser reasonable regular reports and updates concerning the status of the Company shall keep in full force and effect all insurance policies identified in Schedule 2.25 annexed heretoits business;
(d) the Company shall cause its officers promptly notify Purchaser of any inquiry, proposal or offer from any Person relating to report regularly to Transcend concerning the status of the Company's businessany Competing Transaction;
(e) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, and shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securitiesmaintain appropriate insurance for a similarly situated company;
(f) the Company shall not sell, issue or authorize the issuance of of: (i) any share of capital stock or other security (which for clarity does not include profit sharing to employees paid in cash and not paid in the form of shares of capital stock); (ii) any option or right to acquire any capital stock or other security, (ii) any option, call, warrant or right to acquire, or relating to, any capital stock or other security, ; or (iii) any instrument convertible into or exchangeable for any capital stock or other security;
(g) neither the Company nor and Marks shall not allow the transfer of any equity interest in the Company from Marks to any other person provided that the Company may record the Transfer of up to 49% of the Shareholders Shares to his Permitted Transferees;
(h) the Company shall not amend or permit the adoption of any amendment to its Certificate of Incorporation or By-laws that would have the Company articles effect of incorporation or bylaws, or effect or permit adversely affecting Seller’s ability to perform its obligations under any of the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(h) the Company shall not form any subsidiary or acquire any equity interest or other interest in any other EntityTransaction Documents;
(i) the Company shall not make not, without the prior written consent of Purchaser: (i) permit any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing PeriodPurchased Assets to become bound by or subject to, do not exceed $10,000 any contract, agreement or commitment; or (ii) modify or amend in the aggregateany respect, or extend, prematurely terminate or waive, any right or remedy under any such contract, agreement or commitment in (i) above, any Assumed Contract or other Contract. Purchaser may at its discretion require any such contract, agreement or commitment in (i) above consented to in Section 5.1(i)(i) to be assigned to Purchaser and become an Assigned Contract pursuant to Section 2.3(a) and Schedule 2.3;
(j) the Company shall not (i) enter into grant any security interest in or become bound by, or permit allow any Encumbrance on any of the assets owned or used by it to become bound by, any material Contract, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any material ContractPurchased Assets other than Permitted Encumbrances;
(k) the Company shall not, other than in not settle any legal proceeding involving the ordinary course of business consistent with past practice (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the CompanyIntellectual Property;
(l) the Company shall not (i) lend money to enter into any Person, transaction or (ii) incur take any other action that might cause or guarantee constitute a breach of any indebtedness, except that representation or warranty made by the Company may make routine borrowings in the ordinary course of business under its respective existing lines of creditthis Agreement;
(m) the Company shall not (i) establishassign, adopt terminate, transfer or amend license or attempt to assign, transfer or license to any Plan, (ii) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, third party any of its directorsrights in Intellectual Property. Any transfer, officers assignment or employeeslicense in violation of the foregoing restriction will be null and void ab initio. The Company will not modify, amend, prematurely terminate or (iii) hire extend any new employee whose aggregate annual compensation is expected to exceed $25,000Contract affecting the Company’s Intellectual Property, including IP Documentation;
(n) the Company shall not change any provide Purchaser with prompt notice of all patent and trademark office filings and correspondence relating to the IP Documentation received by the Company, if any, for further action with respect thereto by Purchaser, at its methods of accounting or accounting practices in any respectdiscretion pursuant to Section 6.2;
(o) the Company shall have a duty to disclose to Purchaser all inventions developed or conceived by or on behalf of the Company and its shareholders relating to the Business and shall, at Purchaser’s request, provide any assistance Purchaser reasonably requires in pursuing any patent application to the extent it does not make unreasonably interfere with the Company’s performance of its obligations under any Tax electionCollaboration Plan;
(p) the Company shall not commence create, own or settle any Legal Proceedingoperate a website without Purchaser’s prior written consent;
(q) the Company shall not enter into file any material transaction patent applications or take any amendments thereto without the written consent of Purchaser
(r) Seller shall, at all times, maintain adequate capital resources in the Company, reasonably sufficient to satisfy its obligations under the Transaction Documents and operate the Business, as contemplated by the terms of the Transaction Documents, and shall not allow the Company to make any dividend or distribution to Marks or any other material action outside Person if it will result in the ordinary course Company not being able to comply with the terms of business or inconsistent with its past practicesthis provision; and
(rs) the Company shall not agree or commit to take any of the actions it is precluded from taking as described in this Section 5.1. Notwithstanding the foregoing or any other term to the contrary contained in this Agreement, any of the Transaction Documents or otherwise, (W) the Company may take any action it is precluded from taking as described in the clauses "above if Purchaser gives its prior written consent to the taking of such action by the Company, (e)" through "X) the Company shall not be required to maintain (q)" but shall solely be responsible for cooperating fully with Purchaser in maintaining) (i) prosecution of any patent application in the United States or in any other foreign country concerning any of the Intellectual Property, Vaccine Technology, or the Purchased Assets, or (ii) patent registration in the United States or in any other foreign country concerning any of the Intellectual Property, Vaccine Technology, or the Purchased Assets, or (iii) trademark registration in the United States or in any other foreign country concerning any of the Intellectual Property, Vaccine Technology, Seller, or the Purchased Assets; (Y) the Company shall not be required to perform or make any payment under any of the Assigned Contracts; and (Z) the Company shall not be required to take any action, deliver any products, perform any obligations, or make any payment to the extent Purchaser is solely and expressly obligated to take such action, deliver such products, perform such obligations or make such payment pursuant to the terms and conditions of this Section 4.2Agreement or any of the Transaction Documents.
Appears in 1 contract
Samples: Intellectual Property Purchase Agreement (Phibro Animal Health Corp)
Operation of the Business of the Company. During Without the prior written consent of Parent during the Pre-Closing Period, unless Transcend and except as otherwise consents in writingcontemplated or permitted by this Agreement:
(a) each of Holdings, the Company and each Subsidiary shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement, shall pay its debts and Taxes when due (subject to good faith disputes, if any, over such debts and Taxes), and shall pay or perform its other obligations when due;
(b) each of Holdings, the Company and each Subsidiary shall use reasonable efforts to (i) preserve intact its current business organizationsorganization, (ii) keep available the services of its current officers and employees and (iii) maintain its relations and goodwill good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the CompanyCompany and each Subsidiary;
(c) each of Holdings, the Company shall keep in full force and effect all insurance policies identified in Schedule 2.25 annexed hereto;
(d) the Company shall cause its officers to report regularly to Transcend concerning the status of the Company's business;
(e) the Company each Subsidiary shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock;
(d) each of Holdings, the Company and each Subsidiary shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securities;
(f) securities other than pursuant to Contracts in effect as of the date of this Agreement; except for Company Common Stock issued upon the exercise of options to purchase Company Common Stock outstanding on the date of this Agreement, Holdings, the Company and each Subsidiary shall not sell, issue or authorize the issuance of (i) any capital stock or other security, (ii) any option, call, warrant option or right to acquire, or relating to, acquire any capital stock or other security, ; or (iii) any instrument convertible into or exchangeable for any capital stock or other security;
(ge) neither Neither Holdings, the Company nor any of the Shareholders Subsidiary shall amend or permit the adoption of any amendment to the Company articles its certificate of incorporation or bylaws, or effect or permit the Company itself to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(hf) neither Holdings, the Company nor any Subsidiary shall not form any subsidiary or acquire any equity interest or other interest in any other Entity;
(ig) neither Holdings, the Company nor any Subsidiary shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate;
(j) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material Contract, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any material Contract;
(k) the Company shall not, other than in the ordinary course of business consistent with past practice (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the Company;
(l) the Company shall not (i) lend money to any Person, or (ii) incur or guarantee any indebtedness, except that the Company may make routine borrowings in the ordinary course of business under its respective existing lines of credit;
(m) the Company shall not (i) establish, adopt or amend any Planemployee benefit plan, (ii) pay any bonus or make any profit-sharing payment, severance, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or accelerate the vesting of any Company Option or any Company Common Stock subject to vesting or (iii) hire any new employee whose aggregate annual compensation is expected employee, other than (y) new employees who accept offers that are currently outstanding that have been previously disclosed to exceed $25,000Parent, in either case on at-will terms, and provided that prior to making any such offers the Company gives Parent three business days notice and (z) new employees hired to replace employees who leave the employ of the Company consistent with the Company's past practices.; or, (iv) except with prior written consent of Parent which will not be unreasonably withheld, terminate any current employee;
(nh) neither Holdings, the Company nor any Subsidiary shall not change any of its methods of accounting or accounting practices in any respectpractices;
(oi) neither Holdings, the Company nor any Subsidiary shall not make any Tax election;
(pj) neither Holdings, the Company shall nor any Subsidiary shall, except with prior written consent of Parent which will not be unreasonably withheld, commence or settle any Legal Proceeding;
(qk) except in the ordinary course of business (which specifically does not include any licenses for source code or exclusive licenses) neither Holdings, the Company nor any Subsidiary shall enter into any license agreement with respect to or otherwise transfer any rights to any Company Proprietary Asset, or except in the ordinary course of business enter into any license with respect to any Proprietary Asset of any other person or entity;
(l) except in the ordinary course of business (which specifically shall not include exclusive licenses), neither Holdings, the Company nor any Subsidiary shall enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company;
(m) the Company shall not enter into amend or otherwise modify or violate the terms of any material transaction of the Contracts set forth or take described in the Disclosure Schedule;
(n) except with prior written consent of Parent which will not be unreasonably withheld, neither Holdings, the Company nor any Subsidiary shall incur any indebtedness for borrowed money (other material action outside than indebtedness to trade creditors in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(o) neither Holdings, the Company nor any Subsidiary shall grant any loans to others (other than advances of employee travel expenses in the ordinary course of business or inconsistent consistent with its past practices) or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(p) neither Holdings, the Company nor any Subsidiary shall revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable;
(q) neither Holdings, the Company nor any Subsidiary shall pay, discharge or satisfy, in an amount in excess of $75,000 (in any one case or in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise); provided, that for any amounts in excess of $25,000, the Company will provide Parent three days prior written notice of any such payments; and
(r) neither Holdings, the Company nor any Subsidiary shall not agree or commit to take any of the actions described in clauses "(ec)" through "(q)" of this Section 4.2above.
Appears in 1 contract
Samples: Merger Agreement (Packeteer Inc)
Operation of the Business of the Company. (a) During the Pre-Closing Period, unless Transcend except as set forth in Part 4.3(a) of the Company Disclosure Schedule, as otherwise consents contemplated by this Agreement, as required by Legal Requirements or to the extent that Parent shall otherwise consent in writing:
: (ai) the Company shall conduct ensure that the Company conducts its business and operations in the ordinary course and in substantially the same manner as accordance in with past practices, pays its debts and Taxes when due subject to good faith disputes over such business debts or Taxes, and operations have been conducted prior to the date of this Agreement;
pays or performs other obligations when due; (bii) the Company shall use reasonable best efforts to preserve ensure that the Company preserves intact the components of its current business organizationsorganization, keep keeps available the services of its current officers and key employees and maintain maintains its relations and goodwill with all material suppliers, material customers, landlords, creditors, employees material licensors and other Persons having business relationships with the Company;
Governmental Bodies; and (ciii) the Company shall keep in full force promptly notify Parent following its becoming aware of any Legal Proceeding commenced, or, to the Company’s Knowledge, threatened, against, involving or that would reasonably be expected to affect the Company and effect all insurance policies identified in Schedule 2.25 annexed hereto;that relates to any of the Contemplated Transactions.
(db) Except as set forth in Part 4.3(b) of the Company shall cause its officers to report regularly to Transcend concerning Disclosure Schedule, as otherwise expressly contemplated by this Agreement or as required by Legal Requirements, during the status of the Company's business;
(e) Pre-Closing Period, the Company shall not (without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed), and Company shall ensure that each of its Subsidiaries does not (without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed):
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stocksecurities, and shall not or repurchase, redeem or otherwise reacquire any shares of capital stock Company Units or other securities;
(fii) the Company shall not sell, issue issue, grant or authorize the sale, issuance of or grant of: (iA) any capital stock Company Units or other security, ; (iiB) any option, call, warrant or right to acquire, or relating to, acquire any capital stock Company Units or other security, security (or whose value is directly related to Company Units); or (iiiC) any instrument convertible into or exchangeable for any capital stock Company Units or other security;
(giii) neither the Company nor amend, waive any of its rights under any employment agreement or arrangement applicable to the Shareholders shall employees of the Company;
(iv) amend or permit the adoption of any amendment to the Company articles its certificate of incorporation formation, limited liability company agreement or bylaws, other charter or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transactionorganizational documents;
(hA) the Company shall not form any subsidiary or acquire any equity interest or other interest in any other Entity; (B) form any Subsidiary; or (C) effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of limited liability company interests, unit split, reverse unit split, division or subdivision of units, consolidation of units or similar transaction;
(ivi) the Company shall not make any capital expenditure, expenditure in excess of $75,000 (except for capital expenditures that, when added to all other capital expenditures made on behalf of that the Company during the Pre-Closing Period, do not exceed $10,000 may make any capital expenditure that is provided for in the aggregateCompany’s capital expense budget delivered or made available to the Parent prior to the date of this Agreement);
(jvii) other than in the Company shall not ordinary course of business and consistent with past practices: (iA) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material Company Material Contract, ; or (iiB) amend or prematurely amend, terminate, or waive any material right or remedy under, any material Company Material Contract;
(k) the Company shall not, other than in the ordinary course of business consistent with past practice (iviii) acquire, lease or license any right or other asset from any other Person, (ii) Person or sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or Person (iiiexcept in each case for assets: (A) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business and consistent with past practices; or (B) that are immaterial to the business of the Company, taken as a whole);
(lix) the make any pledge of any of its material assets or permit any of its material assets to become subject to any Encumbrances, except for Company shall not Permitted Encumbrances;
(ix) lend money to any Person, or (ii) incur or guarantee any indebtedness, except that the Company may make routine borrowings in the ordinary course of business under its respective existing lines of credit;
(mxi) the Company shall not (i) except as may be required by Legal Requirement, establish, adopt adopt, enter into or amend any PlanCompany Employee Plan or Company Employee Agreement (except as contemplated by this Agreement), (ii) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation, whether payable in stock, cash or other property) or remuneration payable to, or adopt or agree to any retention arrangements with or for the benefit of, any of its directors, managers or any of its officers or employeesother employees (except that the Company may provide routine, or reasonable salary increases to non-officer employees in the ordinary course of business and in accordance with past practices in connection with the Company’s customary employee review process);
(iiixii) hire any new employee whose aggregate at the level of Vice President or above or with an annual compensation is expected base salary in excess of $50,000, or promote any employee to exceed $25,000the level of Vice President or above, except, with the prior written consent of Parent not to be unreasonably withheld, delayed or conditioned, and as determined reasonably necessary by the Company to prepare to become a public company, including without limitation the Company’s obligations pursuant to Section 5.8 hereof;
(nxiii) other than in the Company shall not ordinary course of business and consistent with past practices or as required by concurrent changes in GAAP, change any of its methods of accounting or accounting practices in any respect;
(oxiv) the Company shall not make any material Tax election;
(pxv) the Company shall not commence or settle any Legal Proceeding;
, except with respect to: (qA) the Company shall not enter into any material transaction or take any other material action outside routine matters in the ordinary course of business or inconsistent and consistent with its past practices; and(B) in such cases where the Company reasonably determines in good faith that the failure to commence suit would result in a material impairment of a valuable aspect of its business (provided that the Company consults with Parent and considers the views and comments of Parent with respect to such Legal Proceedings prior to commencement thereof); or (C) in connection with a breach of this Agreement or the other agreements listed in the definition of “Contemplated Transactions”;
(rxvi) settle any Legal Proceeding or other material claim, other than pursuant to a settlement: (A) that results solely in monetary obligation involving payment by the Company shall of the amount specifically reserved in accordance with GAAP with respect to such Legal Proceedings or claim on the Company Latest Balance Sheet; or (B) that results solely in monetary obligation involving only the payment of monies by the Company of not more than $20,000 in the aggregate; or
(xvii) agree or commit to take any of the actions described in clauses "(e)" through "(q)" of this Section 4.24.3(b).
(c) During the Pre-Closing Period, the Company shall promptly notify Parent in writing of any event, condition, fact or circumstance that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article 6 impossible or that has had or would reasonably be expected to have or result in a Company Material Adverse Effect. No notification given to Parent pursuant to this Section 4.3(c) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of the Company contained in this Agreement.
Appears in 1 contract
Operation of the Business of the Company. During the Pre-Closing Period, unless Transcend otherwise consents except as set forth in writingSection 5.2 of the Disclosure Schedule:
(a) the Company and each of its Subsidiaries shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted for the twelve (12) months prior to the date of this Agreement;
(b) the Company and each of its Subsidiaries shall use reasonable best efforts to preserve intact its current business organizationsorganization, keep available the services of its current officers officers, employees, independent contractors and employees consultants and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;and
(c) neither the Company nor any of its Subsidiaries shall keep license any Owned IP, except for non-exclusive licenses for any Company Product included in full force the Company’s or a Subsidiary of the Company’s form customer agreement (that does not, as to the Intellectual Property or Intellectual Property Rights-related terms set forth in such form, deviate in any material respect from such form) without substantial modifications and effect all insurance policies identified granted to customers in Schedule 2.25 annexed heretothe ordinary course of business;
(d) neither the Company nor any of its Subsidiaries shall cause suffer or impose any Encumbrance upon any of its officers to report regularly to Transcend concerning the status of the Company's businessassets (including any Company IP Rights);
(e) neither the Company nor any of its Subsidiaries shall not sell, assign, transfer, lease or otherwise dispose of any of its properties or assets that are material to the Company or any of its Subsidiaries as a whole (including any Owned IP);
(f) neither the Company nor any of its Subsidiaries shall cancel or fail to renew any of its insurance policies identified in Section 2.17 of the Disclosure Schedule or reduce the amount of any insurance coverage provided by such insurance policies;
(g) neither the Company nor any of its Subsidiaries shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stockstock or other securities, and shall not or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities;
(fh) neither the Company nor any of its Subsidiaries shall not sell, issue or authorize the issuance of of: (i) any capital stock Capital Stock or other security, security or Equity Interest; (ii) any option, call, warrant option or other right to acquire, acquire any Capital Stock (or relating to, any capital stock cash based on the value of Capital Stock) or other security, security or Equity Interest; or (iii) any instrument convertible into or exchangeable for any capital stock Capital Stock (or cash based on the value of Capital Stock) or other security;
(gi) neither the Company nor any of the Shareholders its Subsidiaries shall amend amend, supplement or modify or permit the adoption of any amendment to the Company articles of incorporation amendment, supplement or bylawsmodification to, its Organizational Documents, or effect or permit the Company or any of its Subsidiaries to become a party to any Acquisition TransactionTransaction (other than the transactions contemplated by this Agreement), recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(hj) neither the Company nor any of its Subsidiaries shall not form any subsidiary Subsidiary or acquire any equity interest or other interest in any other Entity;
(ik) neither the Company nor any of its Subsidiaries shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures (in each case, as determined in accordance with the Agreed Accounting Principles) made on behalf of the Company or any of its Subsidiaries during the Pre-Closing Period, do not exceed $10,000 in the aggregatefive hundred thousand dollars (US$500,000);
(jl) neither the Company nor any of its Subsidiaries shall not (i) enter into or become bound byinto, or permit any of the assets owned or used by it to become bound by, any material Contract that is or would constitute a Material Contract;
(m) neither the Company nor any of its Subsidiaries shall amend, or (ii) amend extend or prematurely terminate, or waive any material right or remedy under, any material Company Contract that is or would constitute a Material Contract;
(kn) neither the Company shall not, other than in the ordinary course nor any of business consistent with past practice its Subsidiaries shall: (i) acquire, lease or license any right or other asset from any other Person, Person for an aggregate value in excess of one hundred thousand dollars (US$100,000) or from any Affiliate of the Company or any of the Selling Shareholders; (ii) sell or otherwise dispose of, or lease or licenselicense (or grant any other right with respect to), any material right or other material asset to any other Person, or ; (iii) waive or relinquish any material right; or (iv) acquire, except for immaterial assets acquired, leased, lease or license any interest in real property or other licensed or disposed of by the Companyspace;
(lo) neither the Company nor any of its Subsidiaries shall not (i) lend money to any Person, or Person (ii) incur or guarantee any indebtedness, except that the Company and its Subsidiaries may make routine borrowings travel and business expense advances to current employees of the Company or any of its Subsidiaries in the ordinary course of business under its respective existing lines of creditconsistent with past practices);
(mp) neither the Company shall not (i) establish, adopt or amend any Plan, (ii) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, nor any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $25,000;
(n) the Company Subsidiaries shall not change any of its methods of accounting or accounting practices (i) in a manner that would affect the calculation or determination of Closing Cash, Closing Indebtedness, Net Debt, Net Working Capital or Company Transaction Expenses or (ii) in any material respect (other than as required by applicable accounting or auditing standards);
(q) neither the Company nor any of its Subsidiaries shall conduct its cash management customs and practices (including, without limitation, the collection of receivables, payment of payables, capital expenditures and pricing and credit practices) other than in the usual and ordinary course of business consistent with past practice;
(r) neither the Company nor any of its Subsidiaries shall: (i) borrow any amount or incur or become subject to any material Liabilities, except (A) up to fifteen million dollars (US$15,000,000) drawn under the Pxxxx Xxxxxxx Facility as necessary in the ordinary course of business consistent with past practice and (B) Indebtedness from any Person or Persons other than Affiliates of the Company or the Selling Shareholders in an aggregate amount not to exceed one million dollars (US$1,000,000) incurred in the ordinary course of business consistent with past practice; or (ii) default under, cancel or waive any material rights relating to any existing Indebtedness;
(s) neither the Company nor any of its Subsidiaries shall make any loan to, or enter into any other transaction with, any of its managers, officers or employees (other than routine travel and business expense advances to current employees of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practices);
(t) neither the Company nor any of its Subsidiaries shall, except as required by applicable Legal Requirements or any Company Employee Plan made available to Parent and Purchaser, listed on Section 2.15(h) of the Disclosure Schedule and in effect on the date hereof, (i) increase the compensation or benefits payable to any officer, employee or independent contractor or service provider, except for (A) individual increases in the ordinary course of business consistent with past practice, and in no event more than five percent (5%) of the base salary or wage rate of any current employee who has an annual base salary or annualized wages of less than one hundred and fifty thousand dollars (US$150,000) and (B) the determination of the achievement of any applicable performance objectives, whether qualitative or quantitative, under any incentive plans in effect on the date hereof and payment of annual bonuses and other short-term incentive compensation, in each case, in the ordinary course of business consistent with past practice, (ii) increase or provide discretionary benefits under any Company Employee Plan, adopt, establish or enter into any new plan, program, arrangement or agreement that would be a Company Employee Plan if in effect on the date hereof, or materially amend or terminate any existing Company Employee Plan (other than routine Company Employee Plan annual renewals which do not result in an increase in costs to the Company and other than entering into at-will employment offer letters consistent with the form of offer letter provided to Purchaser pursuant to Section 2.15(h) hereof and which do not provide for severance, change in control, or other similar benefits in connection with the hiring of any employee who has an annual base salary or annualized wages of less than one hundred and fifty thousand dollars (US$150,000) in the ordinary course of business and to fill a vacant position), (iii) grant any transaction-based awards or other equity or equity-based compensation, or (iv) amend the Employment Agreement in any respect.
(u) neither the Company nor any of its Subsidiaries shall: (i) make, change or revoke any Tax election; (ii) change an accounting method in respect of Taxes; (iii) prepare or file any Tax Return inconsistent with past practice; (iv) enter into any agreement the primary purpose of which is Tax allocation, Tax sharing, or Tax indemnity; (v) enter into any closing agreement with respect to Taxes; (vi) amend any Company Return; (vii) settle or compromise any claim, notice, audit report or assessment in respect of Taxes; (viii) request any ruling or similar guidance with respect to Taxes from a governmental Tax authority; (ix) consent to an extension or waiver of the statutory limitation period applicable to a claim or assessment in respect of Taxes; (x) knowingly surrender any right to claim a Tax refund, offset or other reduction in Tax liability; or (xi) defer the withholding, deposit or payment of any Taxes pursuant to the Presidential Memorandum on “Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster” dated August 8, 2020 or pursuant to any law or guidance issued subsequent thereto, except, in each case, if such action is permitted by or pertains to Section 2306 of the CARES Act;
(ov) neither the Company nor any of its Subsidiaries shall not make any Tax election;
(p) the Company shall not commence or settle any Legal Proceeding, other than to enforce rights under this Agreement or in connection with the transactions contemplated hereby;
(qw) neither the Company nor any of its Subsidiaries shall not enter into make any material transaction pledge of any of its assets or take otherwise permit any of its assets to become subject to any Encumbrance (other material action outside than Permitted Encumbrances), except for: (i) pledges of immaterial assets made in the ordinary course of business or inconsistent consistent with its the Company’s past practices; and (ii) nonexclusive licenses for any Company Product included in the Company’s form customer agreement and granted to customers in the ordinary course of business;
(x) neither the Company nor any of its Subsidiaries shall modify its primary business or enter into any new lines of business;
(y) neither the Company nor any of its Subsidiaries shall hire or engage any new officer, employee or independent contractor, except, solely with respect to non-officer employees or independent contractors, in the ordinary course of business consistent with past practices and whose annual base salary, annualized wages or annual fees, as applicable, do not exceed (A) with respect to a non-officer employee or independent contractor of the Company or any United States-domiciled Subsidiary of the Company, one hundred and fifty thousand dollars (US$150,000) and (B) with respect to a non-officer employee or independent contractor of any non-United States-domiciled Subsidiary of the Company, fifty thousand dollars (US$50,000), or negotiate, enter into or agree to be bound by any collective bargaining agreement;
(z) neither the Company nor any of its Subsidiaries shall amend or modify any Affiliate Transaction, or enter into an agreement or arrangement that would constitute an Affiliate Transaction, except any agreements or arrangements solely among the Company and its Subsidiaries;
(aa) neither the Company nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation or rehabilitation or authorize or undertake a merger, dissolution, rehabilitation, consolidation, restructuring, recapitalization or other reorganization; and
(rbb) neither the Company nor any of its Subsidiaries shall not agree or commit to take any of the actions described in clauses "“(ec)" ” through "“(qaa)" ” above. Notwithstanding the foregoing, the Company may take any action described in clauses “(c)” through “(aa)” above if: (i) Parent and Purchaser give their prior written consent to the taking of such action by the Company; (ii) such action is expressly required to be taken by this Agreement; (iii) such action is disclosed in Section 4.25.2 of the Disclosure Schedule; or (iv) such action is required by any Legal Requirements or Order and the Company has notified Parent and Purchaser in writing of such action and the relevant Legal Requirement or Order as far in advance of taking such action as is reasonably practicable.
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Operation of the Business of the Company. (a) During the Pre-Closing Period, unless Transcend except as set forth in Part 4.3(a) of the Company Disclosure Schedule, as otherwise consents contemplated by this Agreement, as required by Legal Requirements or to the extent that Parent shall otherwise consent in writing:
: (ai) the Company shall conduct ensure that the Company conducts its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
accordance in all material respects with past practices; (bii) the Company shall use commercially reasonable efforts to preserve attempt to ensure that the Company preserves intact the material components of its current business organizationsorganization, keep keeps available the services of its current officers and key employees and maintain maintains its relations and goodwill with all material suppliers, material customers, landlords, creditors, employees material licensors and other Persons having business relationships with the Company;
Governmental Bodies; and (ciii) the Company shall keep promptly notify Parent following its becoming aware of any Legal Proceeding commenced, or, to the Company’s Knowledge, either: (A) with respect to a Governmental Body, overtly threatened; or (B) with respect to any other Person, threatened in full force writing, in either case of clause (A) or (B) of this sentence, against, involving or that would reasonably be expected to affect the Company and effect all insurance policies identified in Schedule 2.25 annexed hereto;that relates to any of the Contemplated Transactions.
(db) Except as set forth in Part 4.3(b) of the Company shall cause its officers to report regularly to Transcend concerning Disclosure Schedule, as otherwise expressly contemplated by this Agreement or as required by Legal Requirements, during the status of the Company's business;
(e) Pre-Closing Period, the Company shall not (without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed):
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stocksecurities, and shall not or repurchase, redeem or otherwise reacquire any shares of capital stock Company Units or other securities;
(fii) the Company shall not sell, issue issue, grant or authorize the sale, issuance of or grant of: (iA) any capital stock Company Units or other security, ; (iiB) any option, call, warrant or right to acquire, or relating to, acquire any capital stock Company Units or other security, security (or whose value is directly related to Company Units); or (iiiC) any instrument convertible into or exchangeable for any capital stock Company Units or other security;
(giii) neither the Company nor amend, waive any of its rights under any employment agreement or arrangement applicable to the Shareholders shall employees of the Company;
(iv) amend or permit the adoption of any amendment to the Company articles its certificate of incorporation formation, limited liability company agreement or bylaws, other charter or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transactionorganizational documents;
(hA) the Company shall not form any subsidiary or acquire any equity interest or other interest in any other Entity; (B) form any Subsidiary; or (C) effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of limited liability company interests, unit split, reverse unit split, division or subdivision of units, consolidation of units or similar transaction;
(ivi) the Company shall not make any capital expenditure, expenditure in excess of $10,000 (except for capital expenditures that, when added to all other capital expenditures made on behalf of that the Company during the Pre-Closing Period, do not exceed $10,000 may make any capital expenditure that is provided for in the aggregateCompany’s capital expense budget delivered or made available to the Parent prior to the date of this Agreement);
(jvii) other than in the Company shall not ordinary course of business and consistent with past practices: (iA) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material Company Material Contract, ; or (iiB) amend or prematurely amend, terminate, or waive any material right or remedy under, any material Company Material Contract;
(k) the Company shall not, other than in the ordinary course of business consistent with past practice (iviii) acquire, lease or license any right or other asset from any other Person, (ii) Person or sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or Person (iiiexcept in each case for assets: (A) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business and consistent with past practices; or (B) that are immaterial to the business of the Company, taken as a whole);
(lix) the make any pledge of any of its material assets or permit any of its material assets to become subject to any Encumbrances, except for Company shall not Permitted Encumbrances;
(ix) lend money to any PersonPerson (other than extensions of credit to trade creditors, intercompany indebtedness and routine travel and business expense advances made to managers or (ii) employees, in each case in the ordinary course of business), or, except in the ordinary course of business and consistent with past practices, incur or guarantee any indebtedness, except that the Company may make routine borrowings in the ordinary course each case in excess of business under its respective existing lines of credit$50,000;
(mxi) the Company shall not (i) except as may be required by Legal Requirement, establish, adopt adopt, enter into or amend any PlanCompany Employee Plan or Company Employee Agreement (except as contemplated by this Agreement), (ii) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation, whether payable in stock, cash or other property) or remuneration payable to, or adopt or agree to any retention arrangements with or for the benefit of, any of its directors, managers or any of its officers or employeesother employees (except that the Company: (A) may provide routine, or reasonable salary increases to non-officer employees in the ordinary course of business and in accordance with past practices in connection with the Company’s customary employee review process; and (iiiB) may make customary bonus payments and profit sharing payments consistent with past practices in accordance with bonus and profit sharing plans existing on the date of this Agreement);
(xii) hire any new employee whose aggregate at the level of Vice President or above or with an annual compensation is expected base salary in excess of $100,000, or promote any employee to exceed $25,000the level of Vice President or above (except in order to fill a position vacated after the date of this Agreement);
(nxiii) other than in the Company shall not ordinary course of business and consistent with past practices or as required by concurrent changes in GAAP, change any of its methods of accounting or accounting practices in any respect;
(oxiv) the Company shall not make any material Tax election;
(pxv) the Company shall not commence or settle any Legal Proceeding;
, except with respect to: (qA) the Company shall not enter into any material transaction or take any other material action outside routine matters in the ordinary course of business or inconsistent and consistent with its past practices; and(B) in such cases where the Company reasonably determines in good faith that the failure to commence suit would result in a material impairment of a valuable aspect of its business (provided that the Company consults with Parent and considers the views and comments of Parent with respect to such Legal Proceedings prior to commencement thereof); or (C) in connection with a breach of this Agreement or the other agreements listed in the definition of “Contemplated Transactions”;
(rxvi) settle any Legal Proceeding or other material claim, other than pursuant to a settlement: (A) that results solely in monetary obligation involving payment by the Company shall of the amount specifically reserved in accordance with GAAP with respect to such Legal Proceedings or claim on the Company Latest Balance Sheet; or (B) that results solely in monetary obligation involving only the payment of monies by the Company of not more than $20,000 in the aggregate; or
(xvii) agree or commit to take any of the actions described in clauses "(e)" through "(q)" of this Section 4.24.3(b).
(c) During the Pre-Closing Period, the Company shall promptly notify Parent in writing of any event, condition, fact or circumstance that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article 6 impossible or that has had or would reasonably be expected to have or result in a Company Material Adverse Effect. No notification given to Parent pursuant to this Section 4.3(c) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of the Company contained in this Agreement.
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