Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during the Pre-Closing Period: each of the Acquired Corporations 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; each of the Acquired Corporations shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with such Acquired Corporation; none of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 of the Disclosure Schedule; the Company shall cause its Chief Executive Officer to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company Options); the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (B) 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 $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Siebel Systems Inc), Escrow Agreement (Siebel Systems Inc)
Operation of the Company’s Business. Unless (a) Except (i) as set forth in Section 4.2(a) of the Company obtains the prior written Disclosure Schedule, (ii) as expressly permitted by or required in accordance with this Agreement, (iii) as required by applicable Law or (iv) as may be consented to in writing by Parent (which consent of Parentshall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period: each of the Acquired Corporations Company shall use commercially reasonable efforts to conduct its business and operations in the ordinary course Ordinary Course of Business and in substantially compliance in all material respects with all applicable Laws and the same manner requirements of all Contracts that constitute Company Material Contracts. (b) Except (i) as such business and operations have been conducted prior to the date of expressly permitted by this Agreement; each , (ii) as set forth in Section 4.2(b) of the Acquired Corporations shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with such Acquired Corporation; none of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 of the Company Disclosure Schedule; , (iii) as required by applicable Law or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), at all times during the Pre-Closing Period, the Company shall cause its Chief Executive Officer to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status not do any of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(efollowing: (i) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock, nor stock or repurchase, redeem or otherwise reacquire reacquire, directly or indirectly, any shares of its capital stock or other securities, other than securities (except repurchases from former terminated employees, directors and or consultants pursuant to restricted stock purchase agreements and stock option agreements providing for of the repurchase of such securities Company or in connection with their termination of service to any Acquired Corporation; none the payment of the Acquired Corporations shall exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award granted under a Company Plan in accordance with the terms of such award in effect on the date of this Agreement); (ii) sell, issue issue, grant, pledge or otherwise dispose of or encumber or authorize any of the issuance offoregoing with respect to: (iA) any capital stock or other securitysecurity of the Company (except for shares of Company Capital Stock issued upon the valid exercise of Company Warrants outstanding as of the date of this Agreement); (iiB) any option option, warrant or right to acquire any capital stock or any other security (except that the Company shall be permitted security, other than stock options granted to issue Company Options to its employees and service providers in either case, in the ordinary course Ordinary Course of business consistent with past practice)Business; or (iiiC) any instrument convertible into or exchangeable for any capital stock or other security of the Company; (iii) except that as required to give effect to anything in contemplation of the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company Options); the Company shall not Closing, amend or waive any of its rights under, or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Organizational Documents, or effect or permit such Acquired Corporation to become be a party to any Acquisition Transactionmerger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; providedtransaction except, however, that, after for the date hereof and prior to the Closingavoidance of doubt, the Company may file the Amendment Contemplated Transactions; (as defined in Section 4.9iv) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary Subsidiary or acquire any equity interest or other interest in any other Entity or enter into a joint venture with any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (iv) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (iA) lend money to any Person (except that each for the advancement of the Acquired Corporations may make routine travel advances expenses to current employees of such Acquired Corporation employees, directors and consultants in the ordinary course Ordinary Course of business; provided that such advances individually do not exceed $2,000Business); or , (iiB) incur or guarantee any indebtedness for borrowed money money, (C) guarantee any debt securities of others, or (D) other than the incurrence or payment of any Transaction Expenses, make any capital expenditure in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan50,000; (iivi) forgive any loans to any Person, including its employees, officers, directors or Affiliates; -50- (vii) other than pursuant to as required by applicable Law or the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are any Company Benefit Plan as in place as of effect on the date of this Agreement and identified or as disclosed in Part 2.16(aSection 4.2(b)(vii) of the Company Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) adopt, terminate, establish or enter into any Company Benefit Plan; (B) cause or permit any Company Benefit Plan to be amended in any material respect; (C) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, payment to, or (B) increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, other than increases in base salary and annual cash bonus opportunities and payments made in the Ordinary Course of Business consistent with past practice; (D) increase the severance or change of control benefits offered to any current or new employees, directors or consultants; or (iiiE) hire any new (x) officer or (y) employee whose aggregate annual compensation base salary is or is expected to exceed be more than $75,000200,000 per year; none (viii) recognize any labor union or labor organization; (ix) enter into any material transaction other than in the Ordinary Course of the Acquired Corporations shall change Business; (x) acquire any material asset or sell, assign, transfer, lease or otherwise irrevocably dispose of any of its methods assets or properties, or grant any Encumbrance with respect to such assets or properties, except in the Ordinary Course of accounting Business; (xi) sell, assign, transfer, license, sublicense or accounting practices otherwise dispose of, grant any Encumbrance or immunity (including any covenant not to sue or assert) to or under, or abandon, lapse or dedicate to the public (other than in the ordinary course of prosecution of any pending applications for registration), any material respectCompany IP (other than pursuant to non-exclusive licenses in the Ordinary Course of Business); none (xii) terminate, amend or allow to lapse any material Company Permits in a manner that materially and adversely affects the Company’s ability to conduct their business; (xiii) make, change or revoke any material Tax election, fail to pay any income or other material Tax as such Tax becomes due and payable, file any amendment making any material change to any Tax Return, settle or compromise any income or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not Taxes), request or consent to any extension or waiver of any limitation period with respect to any claim or assessment for any income or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than seven (7) months), or adopt or change any material accounting method in respect of Taxes; (xiv) enter into, materially amend or terminate any Company Material Contract or any Contract that would constitute Company Material Contract if it in effect as of the Acquired Corporations shall make date of this Agreement; (xv) other than as required by Law or GAAP, take any Tax electionaction to change accounting policies or procedures; none of the Acquired Corporations shall commence (xvi) initiate or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.;
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Skye Bioscience, Inc.)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during (a) During the Pre-Closing Period: (i) the Company shall ensure that each of the Acquired Corporations shall conduct conducts its business and operations (A) in the ordinary course and in substantially the same manner as such business and operations have been conducted prior accordance with past practices except to the date extent inconsistent with Section 4.2(b) hereof and (B) in compliance with all applicable Legal Requirements and the requirements of this Agreementall Acquired Corporation Contracts that constitute Material Contracts; (ii) the Company shall use commercially reasonable efforts to ensure that each of the Acquired Corporations shall use reasonable efforts to preserve preserves intact its current business organization, keep keeps available the services of its current officers and employees and maintain maintains its relations and good will goodwill with all suppliers, customers, landlords, creditors, strategic partners, licensors, licensees, employees and other Persons having business relationships with the respective Acquired Corporations; (iii) the Company shall keep in full force all insurance policies referred to in Section 2.19; (iv) the Company shall cause to be provided all notices, assurances and support required by any Acquired Corporation Contract relating to any Proprietary Asset in order to ensure that no condition under such Acquired CorporationCorporation Contract occurs that could result in (A) any transfer or disclosure by any Acquired Corporation of any Acquired Corporation Source Code, or (B) a release from any escrow of any Acquired Corporation Source Code that has been deposited or is required to be deposited in escrow under the terms of such Acquired Corporation Contract; none (v) the Company shall promptly notify Parent of (A) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement, and (B) any Legal Proceeding commenced or, to the best of its knowledge threatened against, relating to or involving or otherwise affecting any of the Acquired Corporations shall cancel that relates to the consummation of the Merger or any of its respective insurance policies identified in Part 2.18 of the Disclosure Scheduleother transactions contemplated by this Agreement; and (vi) the Company shall cause its Chief Executive Officer to report regularly (regularly, but in no event less frequently than weekly) every five business days, to the Executive Vice President of Parent concerning the status of the Company's business and shall (to the extent requested by Parent) cause its other than officers to report regularly to Parent concerning the status of the Company's business. The Company shall give Parent reasonable advance notice of any meetings of management of the Company and shall provide Parent with the opportunity to cause a designee of Parent to attend and participate in any such meetings. It is acknowledged that Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxxx and Parent's legal counsel shall be the primary representatives of Parent with respect to potential customer contracts, the matters set forth in this Section 4.2(a) and Section 4.2(b) below. In the event that a disagreement arises between Parent and the Company shall consult on an ongoing basis with respect to the matters governed by this Section 4.2(a) and Section 4.2(b) below, Parent concerning the Consents contemplated by Section 6.4 agrees that its Chief Executive Officer and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to Company agrees that the form chairman of the Consents and other documents Company's board of directors will be made available to be entered into by the Company or signed by any other Person assist in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company Options); the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, resolving any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (B) 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 $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" abovedispute.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Prime Response Inc/De)
Operation of the Company’s Business. Unless Except as set forth on Part 4.1(b) of the Company obtains the prior written Disclosure Schedule or unless Arrow shall otherwise consent of Parentin writing (which consent shall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period: (i) each of the Acquired Corporations Company and its Subsidiaries shall conduct its business and operations operations: (A) in the ordinary course Ordinary Course of Business and in substantially accordance with past practices and (B) in compliance with all applicable Legal Requirements and the same manner as such business requirements of all Contracts that constitute Company Material Contracts; and operations have been conducted prior to the date of this Agreement; (ii) each of the Acquired Corporations Company and its Subsidiaries shall use reasonable efforts to preserve intact its current business organization, use reasonable efforts to keep available the services of its current Key Employees, officers and other employees and maintain its relations and good will goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with such Acquired Corporation; none of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 of the Disclosure Schedule; the Company shall cause its Chief Executive Officer to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e)its Subsidiaries; none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that each of the Company and its Subsidiaries shall be permitted continue to issue Company Common Stock to employees upon the exercise make regularly scheduled payments on its existing debt when due and payable (and not make any prepayments), if any; and (iv) each of outstanding Company Options); the Company and its Subsidiaries shall continue to pay outstanding accounts payable and other current Liabilities (including payroll) when due and payable. Without limiting the foregoing and except (x) as expressly contemplated or permitted by this Agreement, (y) as set forth on Part 4.1(b) of the Company Disclosure Schedule, or (z) with the prior written consent of Arrow (which consent shall not amend be unreasonably withheld, delayed or waive any of its rights underconditioned), or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to at all other capital expenditures made on behalf of such Acquired Corporation times during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) enter intoCompany shall not, nor shall it cause or permit any of the assets owned or used by it to become bound byits Subsidiaries to, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that do any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (B) 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 $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.following:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Oncogenex Pharmaceuticals, Inc.)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of ParentParent (which consent shall not be unreasonably withheld), during the Pre-Closing Period: each of the Acquired Corporations Corporation 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; each of the Acquired Corporations Corporation shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with such Acquired Corporation; none of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 2.17 of the Disclosure Schedule; the Company shall cause its Chief Executive Officer to report regularly (but in no event less frequently than weekly) to the Executive Senior Vice President President, Products of Parent concerning the status of the Company's business other than with respect to potential customer contracts, and ; except for the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(edistributions set forth in Part 3.2(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); Disclosure Schedule, none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: of (i) any capital stock or other security; , (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company OptionsOptions and upon the exercise of warrants for Company Common Stock held by GE Capital Equity Investments, Inc. as of the date hereof); the Company shall not amend or waive any of its rights under, or permit amend or otherwise modify any provisions relating to the acceleration of vesting under: , (i) any provision of any Company Option its 1998 Stock Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; or (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documentscertificate of incorporation or bylaws, or effect or permit such Acquired Corporation to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 75,000 per month; none of the Acquired Corporations shall: shall (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; , or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Material Contract; other than within the ordinary course of business and consistent with past practices, none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; 20,000, (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: shall (i) lend money to any Person (except that each of the Acquired Corporations Corporation may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); , or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 20,000 in the aggregate; none of the Acquired Corporations shall: shall (i) establish, adopt or amend any employee benefit plan; Employee Benefit Plan (other than amendments adopted solely to comply with applicable tax qualifications requirements under the Code and which do not materially increase any of the Acquired Corporation's cost of maintaining such plans), (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (AX) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practicespractice, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (BY) 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 $75,000125,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(rq)" above.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Siebel Systems Inc)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during During the Pre-Closing Period: (i) the Company shall ensure that each of the Acquired Corporations shall conduct conducts its business and operations (A) in the ordinary course and in substantially accordance with past practices and (B) in substantial compliance with all applicable Legal Requirements and the same manner as such business and operations have been conducted prior material requirements of all Material Contracts; (ii) the Company shall use commercially reasonable efforts to the date of this Agreement; ensure that each of the Acquired Corporations shall use reasonable efforts to preserve preserves intact its current business organization, keep keeps available the services of its current officers and other employees and maintain maintains its relations and good will goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with such the respective Acquired CorporationCorporations; none of and (iii) the Acquired Corporations shall cancel any of its respective keep in full force or renew all insurance policies identified referred to in Part 2.18 of Section 2.19. During the Disclosure Schedule; Pre-Closing Period, the Company shall cause its Chief Executive Officer to report regularly not (but in no event less frequently than weekly) to without the Executive Vice President prior written consent of Parent concerning the status Parent), and shall not permit any of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall to: declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue issue, grant or authorize the issuance of: or grant of (iA) any capital stock or other security; , (iiB) any option option, call, warrant or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); security, or (iiiC) any instrument convertible into or exchangeable for any capital stock or other security (except that (1) the Company shall be permitted may issue (x) shares of Company Common Stock upon the valid exercise of Company Options or Company Common Stock Warrants outstanding as of the date of this Agreement, or (y) shares of Company Common Stock upon the valid conversion of Series A Preferred Stock outstanding as of the date of this Agreement or issued pursuant to the exercise of any Company Preferred Stock Warrant outstanding as of the date of this Agreement, or (z) pursuant to the ESPP or the ESOP, (2) the Company may issue shares of Company Series A Preferred Stock upon the valid exercise of Company Preferred Stock Warrants outstanding as of the date of this Agreement, and (3) the Company may issue, in the ordinary course of business and consistent with past practices, grant options under its stock option plans to purchase no more than a total of 5,000 shares of Company Common Stock to employees upon of the exercise of outstanding Company OptionsAcquired Corporations); the Company shall not amend or waive any of its rights under, or accelerate or permit the acceleration of the vesting under: (i) , any provision of any Company Option Planof the Company's stock option plans, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; stock option or (iii) any provision of any restricted stock purchase agreement; none , or otherwise modify any of the Acquired Corporations shall terms of any outstanding option, warrant or other security or any related Contract; amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documentsits certificate of incorporation or bylaws or other charter or organizational documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transactionmerger, consolidation, amalgamation, share exchange, business combination, recapitalization, reclassification of shares, stock split, division or subdivision of shares, reverse stock split split, consolidation of shares or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary Subsidiary or acquire any equity interest or other interest in any other Entity; none of make any capital expenditure (except that the Acquired Corporations shall may make any capital expenditure, except for capital expenditures contemplated by the Agrinomics LLC operating plan furnished to Parent on the date hereof or in the ordinary course of business and consistent with past practices that, when added to all other capital expenditures made on behalf of such the Acquired Corporation Corporations during the Pre-Pre- Closing Period, do not exceed $15,000 per month150,000 in the aggregate); none of the Acquired Corporations shall: (i) enter intointo or become bound by, or permit any of the assets owned or used by it to become bound by, by any Material Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); enter into or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans become bound by Contracts and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid Material Contracts in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans ); amend or arrangements, toterminate, or (B) increase the amount of the wages, salary, commissions, fringe benefits waive or other compensation exercise any material right or remuneration payable toremedy under, any Material Contract, other than in the ordinary course of its directors, officers or employees; or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.business consistent with past practices;
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Exelixis Inc)
Operation of the Company’s Business. Unless (a) Except (i) as expressly contemplated or permitted by this Agreement, (ii) as set forth in Section 5.2(a) of the Company obtains the prior written Disclosure Letter, (iii) as required by applicable Law, or (iv) unless Parent shall otherwise consent of Parentin writing (which consent shall not be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period: each of Period the Acquired Corporations Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to conduct its business and operations in the ordinary course Ordinary Course of Business and in substantially material compliance with all applicable Law and the same manner requirements of all Contracts that constitute Company Material Contracts.
(b) Except (i) as such business and operations have been conducted prior to the date of expressly contemplated or permitted by this Agreement; each , (ii) as set forth in Section 5.2(b) of the Acquired Corporations Company Disclosure Letter, (iii) as required by applicable Law, or (iv) with the prior written consent of Parent (which consent shall use reasonable efforts to preserve intact its current business organizationnot be unreasonably withheld, keep available delayed or conditioned), at all times during the services of its current officers and employees and maintain its relations and good will with all suppliersPre-Closing Period, customersthe Company shall not, landlords, creditors, employees and other Persons having business relationships with such Acquired Corporation; none of the Acquired Corporations nor shall cancel it cause or permit any of its respective insurance policies identified in Part 2.18 Subsidiaries to, do any of the Disclosure Schedule; the Company shall cause its Chief Executive Officer to report regularly following:
(but in no event less frequently than weeklyi) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock, nor ; or repurchase, redeem or otherwise reacquire any shares of capital stock Company Capital Stock or other securities, other than securities (except for shares of Company Common Stock from former terminated employees, directors and or consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: (i) any capital stock or other security; Company);
(ii) any option or right except as required to acquire any capital stock or other security (except that give effect to anything in contemplation of the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company Options); the Company shall not Closing, amend or waive any of its rights under, or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation its Subsidiaries’ Organizational Documents, or effect or permit such Acquired Corporation to become be a party to any Acquisition Transactionmerger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; providedtransaction except, howeverfor the avoidance of doubt, thatthe Contemplated Transactions;
(iii) other than in the Ordinary Course of Business, after sell, issue grant, or authorize any of the foregoing actions with respect to more than 25% of the shares of Company Capital Stock outstanding as of the date hereof and prior to the Closing, of this Agreement: (A) any capital stock or other security of the Company may file or any of its Subsidiaries (except for shares of outstanding Company Common Stock issued upon the Amendment valid exercise of Company Options), (as defined in Section 4.9B) in accordance with Section 4.9; none any option, warrant or right to acquire any capital stock or any other security or (C) any instrument convertible into or exchangeable for any capital stock or other security of the Acquired Corporations shall form Company or any subsidiary or of its Subsidiaries;
(iv) other than in the Ordinary Course of Business, acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) Entity or enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute into a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from joint venture with any other Person for an aggregate value in excess of $15,000; Entity;
(iiv) 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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (iA) lend money to any Person Person, (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (iiB) incur or guarantee any indebtedness for borrowed money money, or (C) guarantee any debt securities of others;
(vi) acquire any material asset or sell, lease, license or otherwise irrevocably dispose of any of its assets or properties, or grant any Encumbrance with respect to such assets or properties, except in the Ordinary Course of Business;
(vii) sell, assign, transfer, license, sublicense or otherwise dispose of any material Company IP Rights (other than pursuant to non-exclusive licenses in the Ordinary Course of Business);
(viii) waive, settle or compromise any pending or threatened Legal Proceeding against the Company, other than waivers, settlements or agreements (A) for an amount not in excess of $5,000 100,000 in the aggregate; none of the Acquired Corporations shall: aggregate (iexcluding amounts to be paid under existing insurance policies or renewals thereof) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (B) increase that do not impose any material restrictions on the amount operations or businesses of the wagesCompany or any equitable relief on, salaryor the admission of wrongdoing by the Company;
(ix) enter into, commissions, fringe benefits amend in a manner adverse to the Company or other compensation or remuneration payable to, terminate any of its directors, officers or employees; or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $75,000; none Company Material Contract outside of the Acquired Corporations shall change any Ordinary Course of its methods of accounting or accounting practices in any material respectBusiness; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or
(x) agree, resolve or commit to take do any of the actions described foregoing. Nothing contained in clauses "(e)" through "(r)" abovethis Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company prior to the First Effective Time. Prior to the First Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over its business operations.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Pulmatrix, Inc.)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during During the Pre-Closing Period, unless the Company obtains Parent's prior written consent as set forth below: each of (a) the Acquired Corporations 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; each of (b) the Acquired Corporations Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with such Acquired Corporationthe Company; none of (c) the Acquired Corporations Company shall cancel any of its respective keep in full force all insurance policies identified in Part 2.18 2.17 of the Disclosure Schedule; (d) the Company shall cause its Chief Executive Officer officers to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contracts, and business; (e) the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor and shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than securities (except that the Company may repurchase Company Common Stock from former employees, directors and consultants employees pursuant to the terms of existing restricted stock purchase agreements and stock option agreements providing for agreements); (f) the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations Company shall not sell, issue or authorize the issuance of: of (i) any capital stock or other security; , (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted (x) to grant stock options exercisable for the purchase of not more than an aggregate of 25,000 shares of Company Common Stock to employees in accordance with its past practices, (y) to issue Company Common Stock to employees upon the exercise of outstanding Company Options, and (z) to issue shares of Company Common Stock upon the conversion of shares of Preferred Stock); (g) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under: , (i) any provision of any Company Option Planits Stock Plans, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none (h) neither the Company nor any of the Acquired Corporations Signing Shareholders shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documentsthe Company Articles or the Company Bylaws, or effect or permit such Acquired Corporation the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, transaction (except that the Company may file issue shares of Company Common Stock upon the Amendment conversion of shares of Preferred Stock); (as defined in Section 4.9i) in accordance with Section 4.9; none of the Acquired Corporations Company shall not form any subsidiary or acquire any equity interest or other interest in any other Entity; none of (j) the Acquired Corporations Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation the Company during the Pre-Closing Period, do not exceed $15,000 100,000 per month; none of 25 32 (k) the Acquired Corporations shall: Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; , other than Material Contracts for the sale or license of the Company's products to customers in the ordinary course of the Company's business and consistent with the Company's past practices, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Material Contract; none of (l) the Acquired Corporations Company shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: not (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person; , other than pursuant to Contracts for the sale or license of the Company's products to customers in the ordinary course of the Company's business and consistent with the Company's past practices, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by such Acquired Corporation the Company pursuant to Contracts that are not Material Contracts; none of (m) the Acquired Corporations shall: Company shall not (i) lend money to any Person (except that each of the Acquired Corporations Company may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Company Options); , or (ii) incur or guarantee any indebtedness for borrowed money in excess (except that the Company may make routine borrowings under its line of $5,000 credit with Silicon Valley Bank in the aggregateordinary course of business or to pay Company Transaction Costs up to $200,000); none of (n) except as set forth in Section 5.14, the Acquired Corporations shall: Company shall not (i) establish, adopt or amend any employee benefit plan; Plan, (ii) pay any bonus, other than regular bonuses pursuant to the terms commission plans of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as certain of the date of this Agreement Company's sales, consulting and identified in Part 2.16(a) of the Disclosure Schedulecustomer support employees, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, payment to, or (B) increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees; employees (other than normal scheduled increases to employees who are not officers), or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $75,000; none of . (o) the Acquired Corporations Company shall not change any of its methods of accounting or accounting practices in any material respect; none of (p) the Acquired Corporations Company shall not make any Tax election; none of (q) the Acquired Corporations Company shall not commence or settle any material Legal Proceeding; and none of (r) the Acquired Corporation Company shall not repay any portion of, or otherwise make any payments with respect to, the Bridge Loan; (s) the Company shall not agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.. Notwithstanding the foregoing, the Company may take any action described in clauses "(a)" through "(s)" above if Parent gives its prior written consent to the taking of such action by the Company, which consent will not be unreasonably withheld (it being understood that Parent's withholding of consent to any action will not be deemed unreasonable if Parent determines in good faith that the taking of such action would not be in the best interests of Parent or would not be in the best interests of the Company). 4.3
Appears in 1 contract
Samples: Shareholder Agreement (Caere Corp)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during During the Pre-Closing Period: (i) the Company shall ensure that each of the Acquired Corporations shall conduct conducts its business and operations (A) in the ordinary course and in substantially accordance with past practices and (B) in compliance with all applicable Legal Requirements and the same manner as such business and operations have been conducted prior requirements of all Acquired Corporation Contracts that constitute Material Contracts; (ii) the Company shall use all reasonable efforts to the date of this Agreement; ensure that each of the Acquired Corporations shall use reasonable efforts to preserve preserves intact its current business organization, keep keeps available the services of its current officers and employees and maintain maintains its relations and good will goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the respective Acquired Corporations; (iii) the Company shall keep in full force all insurance policies referred to in Section 2.19; (iv) the Company shall provide all notices, assurances and support required by any Acquired Corporation Contract relating to any Proprietary Asset in order to ensure that no condition under such Acquired CorporationCorporation Contract occurs that could result in, or could increase the likelihood of, (A) any transfer or disclosure by any Acquired Corporation of any Acquired Corporation Source Code, or (B) a release from any escrow of any Acquired Corporation Source Code that has been deposited or is required to be deposited in escrow under the terms of such Acquired Corporation Contract; none (v) the Company shall promptly notify Parent of (A) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with the transactions contemplated by this Agreement, and (B) any Legal Proceeding commenced, or, to the best of its knowledge threatened against, relating to or involving or otherwise affecting any of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 that relates to the consummation of the Disclosure Scheduletransactions contemplated by this Agreement; and (vi) the Company shall (to the extent requested by Parent) cause its Chief Executive Officer officers and the officers of its Subsidiaries to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contractsbusiness. During the Pre-Closing Period, and the Company shall consult on an ongoing basis with Parent concerning not (without the Consents contemplated by Section 6.4 prior written consent of Parent), and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form shall not permit any of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall to: declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue issue, grant or authorize the issuance of: or grant of (iA) any capital stock or other security; , (iiB) any option option, call, warrant or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); security, or (iiiC) any instrument convertible into or exchangeable for any capital stock or other security (except that (1) the Company shall be permitted to may issue shares of Company Common Stock to employees (x) upon the valid exercise of Company Options and Company Warrants outstanding Company Options); as of the date of this Agreement, and (y) pursuant to the ESPP, and (2) the Company shall not may, in the ordinary course of business and consistent with past practices, grant to newly- hired employees of the Company below the rank of Vice President nonqualified options (having an exercise price equal to the fair market value of the Company Common Stock covered by such options determined as of the time of the grant of such options) under its stock option plans to purchase no more than a total of 150,000 shares of Company Common Stock in the aggregate for all such employees; amend or waive any of its rights under, or permit accelerate the acceleration of vesting under: (i) , any provision of any Company Option Planof the Company's stock option plans, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; stock option or (iii) any provision of warrant or any restricted stock purchase agreement; none , or otherwise modify any of the Acquired Corporations shall terms of any outstanding option, warrant or other security or any related Contract; amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documentsits articles of incorporation or bylaws or other charter or organizational documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transactionmerger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split split, consolidation of shares or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary Subsidiary or acquire any equity interest or other interest in any other Entity; none of make any capital expenditure (except that the Acquired Corporations shall may make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such the Acquired Corporation Corporations during the Pre-Closing Period, do not exceed $15,000 per month20,000,000 in the aggregate); none of the Acquired Corporations shall: (i) enter intointo or become bound by, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; , or (ii) amend or prematurely terminate, or waive or exercise any material right or remedy under, any such Material Contract, other than in the ordinary course of business consistent with past practices; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (ii) or sell or otherwise dispose of, or lease or license, any right or other asset to any other Person; or Person (iii) waive or relinquish any right, except in each case for immaterial assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid Company in the ordinary course of business and consistent with past practices and licenses of software owned by the Acquired Corporations to third parties entered into in the ordinary course of business consistent with past practices), and or waive or relinquish any material right; lend money to any Person, or incur or guarantee any indebtedness (except that payments up to $5,000 the Company may be made pursuant to existing plans make routine borrowings in the ordinary course of business under its current line of credit with ABN AMRO); establish, adopt or arrangementsamend any employee benefit plan, pay any bonus or make any profit-sharing or similar payment to, or (B) increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employeesemployees (except that the Company (A) may make routine, reasonable salary increases in connection with the Company's customary employee review process, and (B) may make customary bonus payments and profit sharing payments consistent with past practices payable in accordance with existing bonus and profit sharing plans referred to in Part 2.17(a) of the Company Disclosure Schedule); or (iii) 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 $200,000, or promote any employee except in order to exceed $75,000fill a position vacated after the date of this Agreement; none change any of the Acquired Corporations shall change its pricing policies, product return policies, product maintenance polices, service policies, product modification or upgrade policies, personnel policies or other business policies, or any of its methods of accounting or accounting practices in any material respect; none take or permit to be taken any action that the Company believes would preclude Parent from accounting for the merger as a "pooling of the Acquired Corporations shall interests" for accounting purposes; make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none enter into any material transaction or take any other material action outside the ordinary course of the Acquired Corporation shall business or inconsistent with past practices; or agree or commit to take any of the actions described in clauses "(ei)" through "(rxvi)" aboveof this Section 4.2(b). During the Pre-Closing Period, the Company shall promptly notify Parent in writing of: (i) the discovery by the Company of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by the Company in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by the Company in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of the Company contained in this Agreement; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on the Acquired Corporations. Without limiting the generality of the foregoing, the Company shall promptly advise Parent in writing of any Legal Proceeding or material claim threatened, commenced or asserted against or with respect to any of the Acquired Corporations. No notification given to Parent pursuant to this Section 4.2(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
Samples: Agreement and Plan of Reorganization (Etec Systems Inc)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during (A) During the Pre-Closing Period: (i) the Company shall ensure that each of the Acquired Corporations shall conduct conducts its business and operations (A) in the ordinary course and in substantially accordance with past practices and (B) in compliance with all applicable Legal Requirements and the same manner as such business and operations have been conducted prior requirements of all Acquired Company Contracts that constitute Material Contracts; (ii) the Company shall use all reasonable efforts to the date of this Agreement; ensure that each of the Acquired Corporations shall use reasonable efforts to preserve preserves intact its current business organization, keep keeps available the services of its current officers and employees and maintain maintains its relations and good will goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with such the respective Acquired CorporationCorporations; none of the Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 of the Disclosure Schedule; (iii) the Company shall keep in full force all insurance policies referred to in Section 2.18; (iv) the Company shall provide all notices, assurances and support required by any Acquired Corporation Contract relating to any Proprietary Asset in order to ensure that no condition under such Acquired Corporation Contract occurs which could result in, or could increase the likelihood of, (A) any transfer or disclosure by any Acquired Corporation of any source code materials or other Proprietary Asset, or (B) a release from any escrow of any source code materials or other Proprietary Asset which have been deposited or are required to be deposited in escrow under the terms of such Acquired Corporation Contract; and (v) the Company shall (to the extent requested by Parent) cause its Chief Executive Officer officers to report regularly (but in no event less frequently than weekly) to the Executive Vice President of Parent concerning the status of the Company's business other than with respect to potential customer contractsbusiness. (B) During the Pre-Closing Period, and the Company shall consult on an ongoing basis with Parent concerning not (without the Consents contemplated by Section 6.4 prior written consent of Parent), and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form shall not permit any of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall to: (I) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall (II) sell, issue issue, grant or authorize the issuance of: or grant of (i) any capital stock or other security; , (ii) any option option, call, warrant or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to may (A) issue Company Common Stock to employees upon the valid exercise of Company Options or Company Warrants outstanding as of the date of this Agreement and (B) in the ordinary course of business and consistent with past practices, grant options exercisable into not more than two hundred fifty (250) shares of Company OptionsCommon Stock per newly-hired employee); the Company shall not (III) amend or waive any of its rights under, or permit accelerate the acceleration of vesting under: (i) , any provision of any Company Option Planof the Company's stock option plans, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; stock option or (iii) any provision of any restricted stock purchase agreement; none , or otherwise modify any of the Acquired Corporations shall terms of any outstanding option, warrant or other security or any related Contract; (IV) amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documentsits articles of incorporation or bylaws or other charter or organizational documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transactionmerger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9V) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of (VI) make any capital expenditure (except that the Acquired Corporations shall may make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that any of the Acquired Corporations has created, established, used or executed either prior to or after the date of this Agreement; none of the Acquired Corporations shall: (i) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order to: (A) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or (B) 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 $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Acquired Corporation shall agree or commit to take any of the actions described in clauses "(e)" through "(r)" above.26
Appears in 1 contract
Samples: Agreement and Plan of Merger And (First Consulting Group Inc)
Operation of the Company’s Business. Unless the Company obtains the prior written consent of Parent, during (a) During the Pre-Closing Period: (i) the Company shall ensure that each of the Acquired Corporations shall conduct conducts its business and operations in the ordinary course and in substantially accordance with past practices, and in compliance with all applicable Legal Requirements and the same manner as such business and operations have been conducted prior requirements of all Significant Contracts; (ii) the Company shall use commercially reasonable efforts to the date of this Agreement; ensure that each of the Acquired Corporations shall use reasonable efforts to preserve preserves intact its current business organization, keep keeps available the services of its current officers and other employees and maintain maintains its relations and good will goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with such Acquired Corporation; none of the respective Acquired Corporations shall cancel any of its respective insurance policies identified in Part 2.18 of the Disclosure Scheduleand with all Governmental Bodies; (iii) the Company shall cause its Chief Executive Officer to report regularly (but in no event less frequently than weekly) promptly notify Parent of any claim asserted or Legal Proceeding commenced, or, to the Executive Vice President of Parent concerning the status Knowledge of the Company's business other than with respect to potential customer contracts, and the Company shall consult on an ongoing basis with Parent concerning the Consents contemplated by Section 6.4 and the terminations contemplated by Section 6.6(e) and obtain Parent's consent to the form of the Consents and other documents to be entered into by the Company or signed by any other Person in connection with the matters contemplated by Sections 6.4 and 6.6(e); none of the Acquired Corporations shall declarethreatened against, accruerelating to, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, nor repurchase, redeem involving or otherwise reacquire any shares of capital stock or other securities, other than from former employees, directors and consultants pursuant to restricted stock purchase agreements and stock option agreements providing for the repurchase of such securities in connection with their termination of service to any Acquired Corporation; none of the Acquired Corporations shall sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to acquire any capital stock or other security (except that the Company shall be permitted to issue Company Options to its employees in the ordinary course of business consistent with past practice); or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Company Options); the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under: (i) any provision of any Company Option Plan, other than as a result of Parent's failure to assume the Company Options in the Merger; (ii) any provision of any agreement evidencing any outstanding Company Option, other than as a result of Parent's failure to assume the Company Options in the Merger; or (iii) any provision of any restricted stock purchase agreement; none of the Acquired Corporations shall amend or permit the adoption of any amendment to such Acquired Corporation's Incorporation Documents, or effect or permit such Acquired Corporation to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; provided, however, that, after the date hereof and prior to the Closing, the Company may file the Amendment (as defined in Section 4.9) in accordance with Section 4.9; none of the Acquired Corporations shall form any subsidiary or acquire any equity interest or other interest in any other Entity; none of the Acquired Corporations shall make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of such Acquired Corporation during the Pre-Closing Period, do not exceed $15,000 per month; none of the Acquired Corporations shall: (i) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Material Contract; or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such Contract; none of the Acquired Corporations shall create, establish or use any new standard form Contract or amend any standard form Contract that affecting any of the Acquired Corporations has created, established, used or executed either prior that relates to or after the date of this Agreement; none any of the Acquired Corporations shall: Contemplated Transactions; and (iiv) acquire, lease or license any right or other asset from any other Person for an aggregate value in excess of $15,000; (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 assets acquired, leased, licensed or disposed of by such Acquired Corporation pursuant to Contracts that are not Material Contracts; none of the Acquired Corporations shall: (i) lend money to any Person (except Company shall ensure that each of the Acquired Corporations may make routine travel advances to current employees of such Acquired Corporation in the ordinary course of business; provided that such advances individually do not exceed $2,000); or (ii) incur or guarantee any indebtedness for borrowed money in excess of $5,000 in the aggregate; none of the Acquired Corporations shall: (i) establish, adopt or amend any employee benefit plan; (ii) other than pursuant to the terms of commission plans, bonus plans, variable compensation plans and employment agreements that are in place as of the date of this Agreement and identified in Part 2.16(a) of the Disclosure Schedule, make any individual payment in excess of $2,000 in order toCorporations: (A) pay any bonus timely files all Tax Returns (“Post-Signing Returns”) required to be filed by or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course on behalf of business and consistent with past practices, and except that payments up to $5,000 may be made pursuant to existing plans or arrangements, to, or each such Entity; (B) increase timely pays all Taxes due and payable in respect of such Post-Signing Returns that are so filed; (C) accrues a reserve in the amount books and records and financial statements of any such Entity at such times and in such amounts as are in accordance with past practice for all Taxes payable by such Entity for which no Post-Signing Return is due prior to the Closing Date; (D) causes all existing Tax sharing agreements, Tax indemnity obligations and similar agreements, arrangements or practices with respect to Taxes to which any such Entity is or may be a party or by which any such Entity is or may otherwise be bound to be terminated as 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 $75,000; none of the Acquired Corporations shall change any of its methods of accounting or accounting practices in any material respect; none of the Acquired Corporations shall make any Tax election; none of the Acquired Corporations shall commence or settle any material Legal Proceeding; and none of the Closing Date so that after such date no Acquired Corporation shall agree have any further rights or commit to take liabilities thereunder; and (E) not file any of the actions described in clauses "(e)" through "(r)" abovePost-Signing Returns with any Taxing authority without Parent’s prior written consent, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
