Restrictions on Conduct of Company Business. Except as set forth in Schedule 4.2 hereto or as expressly contemplated by the terms of this Agreement, the Company shall not, and shall cause each Company Subsidiary not to, without the prior written consent of Acquiror: (i) enter into any transaction or undertake any action, or omit to take any action, that would reasonably be expected to result in a Material Adverse Effect; (ii) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant or permit any Encumbrance on any of the Company’s properties or assets (whether tangible or intangible), except in favor of Silicon Valley Bank; (iv) sell, transfer, assign, convey, lease, license (other than on a non-exclusive basis pursuant to Standard Form Out-Licenses in the ordinary course of business consistent with past practices) or otherwise dispose of any material portion of the Company’s assets; (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion of the Company or any Company Subsidiary or any of their respective assets, whether by merger, share purchase, license or otherwise (other than non-exclusive agreements to license or provide products of the Company to end-users pursuant to Standard Form Out-Licenses that have been entered into in the ordinary course of business consistent with past practices); (vi) enter into, amend, waive any rights under or terminate any (a) issue, deliver or sell, or authorize the issuance, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrants, or shares of Company Preferred Stock, in each case outstanding on the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable for, any shares of Company Capital Stock, or (b) amend any terms of any Company Capital Stock, Company Options or Company Warrants (whether by merger, consolidation or otherwise); (xiii) make any capital expenditures in excess of $10,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xv) enter into, adopt, amend, modify or terminate any Company Employee Plan, or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; (xvi) establish, grant, pay or increase or agree to establish, grant, pay or increase any form of compensation or benefits to any director or Employee of the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment of, or funding or in any other way securing the payment of, compensation or benefits under any Company Employee Plan, except as required under a Company Employee Plan as of the date hereof and made available to Acquiror; (xviii) hire or terminate any director, officer, advisor, consultant or employee of the Company or any Company Subsidiary, except for cause, (xix) send any written communications (including electronic communications) to any employees of the Company or the Company Subsidiaries regarding this Agreement or the transactions contemplated hereby or make any communications to the employees of the Company or the Company Subsidiaries that are inconsistent with this Agreement or the transactions contemplated hereby; or (xx) take or agree to take, any of the actions described in clauses (i) through (xix) in this Section 4.2.
Appears in 1 contract
Samples: Merger Agreement (E2open Inc)
Restrictions on Conduct of Company Business. Except as set forth in Schedule 4.2 hereto or as expressly contemplated by the terms of this Agreement, the Company shall not, and shall cause each Company Subsidiary not to, without the prior written consent of Acquiror: Parent:
(ia) cause or permit any modifications, amendments or changes to the Charter Documents;
(b) undertake any expenditure, transaction or commitment exceeding $25,000 or any commitment or transaction of the type described in Section 3.17(a);
(c) pay, discharge, waive or satisfy, in an amount in excess of $25,000, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise);
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates, or revenue recognition policies) other than as required by GAAP;
(e) make or change any material Tax election, adopt or change any Tax accounting method, enter into any transaction closing agreement in respect of Taxes, settle or undertake compromise any actionmaterial Tax claim or assessment, consent to any extension or omit waiver of the limitation period applicable to take any actionmaterial Tax claim or assessment or file any income, that would reasonably franchise or other material Return or any amended Return unless a copy of such Return has been delivered to Parent for review a reasonable time prior to filing, and Parent has approved such Return, which approval shall not be expected to result in a Material Adverse Effect; unreasonably withheld, conditioned or delayed;
(iif) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant or permit any Encumbrance on revalue any of the Company’s properties or its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for, Company Common Stock) except in favor accordance with the Contracts evidencing Company Options;
(h) adopt, terminate or amend any Company Employee Plan, enter into, terminate or amend any Employee Agreement, increase, decrease or otherwise change the salary, bonus, wage rates, fringe benefits, or other compensation (including equity based compensation) payable or to become payable to any Employee, or make any declaration, promise, payment or commitment or obligation of Silicon Valley Bank; any kind for the payment (ivwhether in cash or equity or otherwise) sellof a severance payment, transfertermination payment, assignchange of control payment, conveybonus, leasespecial remuneration or other additional salary or compensation (including equity based compensation) to any director, license officer, or Employee, except payments made pursuant to written Contracts existing on the date hereof and disclosed in Section 5.2(h) of the Disclosure Schedule, or increase rights to indemnification for any Employee;
(i) other than on a entering into non-exclusive basis pursuant licenses and related Contracts with respect to Standard Form Out-Licenses in the ordinary course of business consistent with past practices) sale or otherwise dispose of any material portion of the Company’s assets; (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion licensing of the Company Products or any Company Subsidiary or any of their respective assets, whether by merger, share purchase, license or otherwise (other than non-exclusive agreements Services to license or provide products of the Company to end-end users pursuant to Standard Form Out-Licenses that have been written Contracts entered into in the ordinary course of business consistent with past practices and that do not materially differ in substance from the Company’s standard form(s) including attachments (which are included in Schedule 5.2(i)) involving aggregate payments to the Company of less than $25,000, (i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except for the sale of properties or assets (whether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practices, or transfer to any Person any rights to any Company Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person, (ii) purchase or license any Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to the Intellectual Property of any Person or (iii) enter into any Contract or modify or amend any existing Contract with respect to the development of any Intellectual Property with a third party;
(j) issue or agree to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $10,000;
(k) make any loan to any Person (except for reasonable advances to employees for travel and business expenses in the ordinary course of business consistent with past practices); (vi) enter into, amendor forgive any loan to any Person, waive or purchase debt securities of any rights under Person or terminate anyamend the terms of any outstanding loan Contract;
(al) incur any Indebtedness (other than the obligation to reimburse employees for travel and business expenses or indebtedness incurred in connection with the purchase of goods and services in the ordinary course of business consistent with past practices), or amend the terms of any outstanding Contract in respect of Indebtedness;
(m) waive or release any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, in excess of $10,000;
(n) commence or settle any lawsuit, proceeding or other investigation relating to any of its business, properties or assets;
(o) issue, grant, deliver or sell, sell or authorize or propose the issuance, grant, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrantsof, or shares of Company Preferred Stock, in each case outstanding on purchase or propose the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable forpurchase of, any shares of Company Capital Stock, or (b) amend any terms of securities convertible into or exercisable or exchangeable for any Company Capital Stock, or subscriptions, rights, warrants or options to acquire any Company Capital Stock, or other Contracts or commitments of any character obligating any of them to issue or purchase any Company Capital Stock or other convertible securities, except for the issuance of Company Common Stock pursuant to the exercise of outstanding Company Options and Company Warrants (including any amendments to such Company Options or Company Warrants agreements as are mutually agreed to by Parent and Company);
(whether p) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Services, other than any such Contracts entered into in the ordinary course of business consistent with past practices involving aggregate payments by mergerthe Company of less than $25,000;
(q) enter into any Contract to purchase or sell any interest in real property, consolidation or otherwise); (xiii) make grant any capital expenditures in excess of $10,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization security interest in any form of transaction; (xv) real property, enter intointo any lease, adoptsublease, license or other occupancy Contract with respect to any real property or renew, alter, amend, modify or terminate any Company Employee Planof the terms of any Lease Agreement;
(r) terminate, amend or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; modify (xvi) establish, grant, pay or increase or agree to establishdo so), grant, pay or increase any form of compensation or benefits to any director or Employee of violate the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment terms of, or funding make any payments resulting from agreed upon early termination of, any of the Contracts set forth or described in the Disclosure Schedules;
(s) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities, that are material individually or in the aggregate, to the Company’s business;
(t) enter into any other way securing the payment ofstrategic alliance, compensation affiliate Contract or benefits joint marketing arrangement or Contract;
(u) reprice Company Options or Company Warrants granted under any employee, consultant, director or other stock plan (including the Plan), or authorize any cash or equity exchange for any Company Employee Plan, except as required Options or Company Warrants granted under a Company Employee Plan as of the date hereof and made available to Acquiror; any such plan;
(xviiiv) hire or terminate any directorEmployee, officer, advisor, consultant or employee of the Company or any Company Subsidiary, except other than for cause, or encourage or otherwise cause any Employee to resign from the Company;
(xixw) send make any written communications (including electronic communications) to any employees of the Company representations or the Company Subsidiaries regarding this Agreement or the transactions contemplated hereby or make issue any communications to the employees of the Company or the Company Subsidiaries Employees that are inconsistent with this Agreement or the transactions contemplated herebythereby, including any representations regarding offers of employment from Parent;
(x) cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practice and other than the addition of a “tail policy” of the kind contemplated by Section 6.16 hereof) or renew any insurance policy of the Company; or or
(xxy) take take, commit, or agree in writing or otherwise to take, any of the actions described in clauses (iSections 5.2(a) through (xix) in this Section 4.25.2(x).
Appears in 1 contract
Restrictions on Conduct of Company Business. Except as set forth in Schedule 4.2 hereto or as expressly contemplated by the terms of this Agreement, the The Company shall not, and shall cause each Company Subsidiary not to, without the prior written consent of Acquiror: (i) enter into any transaction or undertake any action, or omit to take any action, that would reasonably be expected to result in a Material Adverse Effect; (ii) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant or knowingly permit any Encumbrance (other than a Permitted Encumbrance) on any of the Company’s properties or assets (whether tangible or intangible), except in favor of Silicon Valley Bank; (iv) sell, transfer, assign, convey, lease, license (other than on a non-exclusive basis pursuant to Standard Form Ordinary Course Out-Licenses in the ordinary course of business consistent with past practicesLicenses) or otherwise dispose of any material portion of the Company’s assets; (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion of the Company or Company, any Company Subsidiary or any of their respective assets, whether by merger, share purchase, license or otherwise (other than non-exclusive agreements to license or provide products of the Company to end-users pursuant to Standard Form Ordinary Course Out-Licenses that have been entered into in the ordinary course of business consistent with past practicesLicenses); (vi) enter into, amend, waive any rights under or terminate any Company Material Agreement; (vii) waive or release any material right or claim of the Company or any Company Subsidiary; (viii) transfer or provide a copy of any Company Source Code to any Person; (ix) borrow money or incur any indebtedness for borrowed money; (x) make or change any
(a) except as contemplated by a sale of Company Capital Stock by a current stockholder of the Company or a capital contribution by a current stockholder of the Company set forth on Schedule 5.2(xii) (each, a “Stockholder Equity Transfer”), issue, deliver or sell, or authorize the issuance, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrants, or shares of Company Preferred Stock, in each case outstanding on the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, into or exercisable exerciseable or exchangeable for, any shares of Company Capital Stock, or (b) except as contemplated by a Stockholder Equity Transfer, amend any terms of any Company Capital Stock, Company Options or Company Warrants Stock (whether by merger, consolidation or otherwise); (xiii) make any capital expenditures in excess of $10,00025,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xv) enter into, adopt, amend, modify or terminate any Company Employee Plan, or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; (xvi) establish, grant, pay or increase or agree to establish, grant, pay or increase any form of compensation or benefits to any director director, officer or Employee of the CompanyCompany which consent shall not be unreasonably withheld, conditioned or delayed; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment of, or funding or in any other way securing the payment of, compensation or benefits under any Company Employee PlanPlan which consent shall not be unreasonably withheld, except as required under a Company Employee Plan as of the date hereof and made available to Acquirorconditioned or delayed; (xviii) hire or terminate any director, officer, advisor, consultant officer or key employee of the Company or any Company SubsidiarySubsidiary which consent shall not be unreasonably withheld, except for cause, conditioned or delayed or (xix) send any written communications (including electronic communications) to any employees of the Company or the Company Subsidiaries regarding this Agreement or the transactions contemplated hereby or make any communications to the employees of the Company or the Company Subsidiaries that are inconsistent with this Agreement or the transactions contemplated hereby; or (xx) take or agree to take, any of the actions described in clauses (i) through (xixxviii) in this Section 4.25.2.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Twitter, Inc.)
Restrictions on Conduct of Company Business. Except (i) as expressly contemplated or permitted by this Agreement, (ii) as set forth in Schedule 4.2 hereto or as expressly contemplated by the terms Section 5.2 of this Agreement, the Company shall notDisclosure Schedule, and shall cause each Company Subsidiary not to, without or (iii) with the prior written consent of Acquiror: Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not and shall cause each of its Subsidiaries not to:
(ia) enter into any transaction or undertake any action, or omit to take any action, that would reasonably be expected to result in a Material Adverse Effect; (ii) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant cause or permit any Encumbrance on modifications, amendments or changes to the Charter Documents;
(b) undertake any expenditure, transaction or commitment exceeding $15,000 individually or $30,000 in the aggregate or any commitment or transaction of the Company’s properties or assets (whether tangible or intangibletype described in Section 3.16(a), except in favor of Silicon Valley Bank; (iv) sell, transfer, assign, convey, lease, license (other than on a non-exclusive basis pursuant to Standard Form Out-Licenses for the sale of products and services in the ordinary course of business consistent with past practices;
(c) pay, discharge, waive or satisfy, in an amount in excess of $15,000 individually or $30,000 in the aggregate, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates, or revenue recognition policies) other than as required by GAAP or applicable Legal Requirements;
(e) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing Contract in respect of Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any income, franchise or other material Return or any amended Return unless a copy of such Return has been delivered to Parent for review a reasonable time prior to filing;
(f) revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable, except as required by GAAP or applicable Legal Requirements;
(g) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock or Subsidiary Capital Stock, or split, combine or reclassify any Company Capital Stock or Subsidiary Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of Company Capital Stock or Subsidiary Capital stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock or Subsidiary Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for, Company Common Stock or Subsidiary Capital Stock) except in accordance with the Contracts evidencing Company Options and the conversion of the Company’s Series C Preferred Stock into Company Debt on the terms and conditions applicable thereto;
(h) except as set forth in the Company’s 2010 budget previously provided to Parent, adopt, terminate or amend any Company Employee Plan, enter into, terminate or amend any Employee Agreement, increase, decrease or otherwise change the salary, bonus, wage rates, fringe benefits, or other compensation (including equity based compensation) payable or to become payable to any Employee, or make any declaration, promise, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) of a severance payment, termination payment, change of control payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any director, officer, or Employee, except payments made pursuant to written Contracts existing on the date hereof and disclosed in Section 5.2(h) of the Company Disclosure Schedule, or increase rights to indemnification for any Employee;
(i) other than entering into non-exclusive licenses and related Contracts with respect to the sale or licensing of the Company Services to end users pursuant to written Contracts in the ordinary course of business consistent with past practices and that do not materially differ in substance from the Company’s standard form(s), (i) sell, lease, license or otherwise dispose of or grant any material portion security interest in any of its properties or assets, including the sale of any accounts receivable of the Company’s assets; , except for the sale of properties or assets (vwhether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practices, or transfer or exclusively license to any Person any rights to any Company Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to the transfer or exclusive license of any Company Intellectual Property;
(j) make any loan to any Person (except for advances to employees for travel and business expenses in the purchaseordinary course of business consistent with past practices), saleor forgive any loan to any Person, transferor purchase debt securities of any Person or amend the terms of any outstanding loan Contract;
(k) incur any Company Debt in an aggregate amount in excess of $250,000 (other than (i) the obligation to reimburse employees for travel and business expenses, license (ii) indebtedness incurred in connection with the purchase or other disposition sale of all goods and services in the ordinary course of business consistent with past practices, or (iii) loans to direct or indirect wholly-owned Subsidiaries of the Company), or amend the terms of any portion outstanding Material Contract in respect of any Company Debt;
(l) waive or release any material right or claim of the Company or any of its Subsidiaries;
(m) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company Subsidiary or any of its Subsidiaries or relating to any of their respective business, properties or assets;
(n) issue, whether grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Company Capital Stock or Subsidiary Capital Stock, or any securities convertible into or exercisable or exchangeable for any Company Capital Stock or Subsidiary Capital Stock, or subscriptions, rights, warrants or options to acquire any Company Capital Stock or Subsidiary Capital Stock, or other Contracts or commitments of any character obligating any of them to issue or purchase any Company Capital Stock or Subsidiary Capital Stock or other convertible securities, except for the issuance of Company Common Stock or Subsidiary Capital Stock pursuant to the exercise of outstanding Company Options and Company Warrants (including any amendments to such Company Options or Company Warrants agreements as are mutually agreed to by mergerParent and the Company), share purchaseor the conversion of Company Preferred Stock;
(o) enter into or amend any Contract pursuant to which any other party is granted marketing, license distribution, development, delivery, manufacturing or otherwise (similar rights of any type or scope with respect to any Company Products or Services other than non-exclusive agreements to license or provide products of the Company to end-users pursuant to Standard Form Out-Licenses that have been any such Contracts entered into in the ordinary course of business consistent with past practices); ;
(vip) enter intointo any Contract to purchase or sell any interest in real property, amendgrant any security interest in any real property, waive enter into any rights under material lease, sublease, license or other occupancy Contract with respect to any real property or renew, terminate any
(a) issueor materially alter, deliver amend or sell, or authorize modify any of the issuance, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrants, or shares of Company Preferred Stock, in each case outstanding on the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable for, any shares of Company Capital Stock, or (b) amend any terms of any Company Capital StockLease Agreement;
(q) terminate, amend or otherwise modify (or agree to do so), any Material Contract;
(r) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities, that are material individually or in the aggregate, to the Company’s or any of its Subsidiaries’ business;
(s) enter into any material strategic alliance, affiliate Contract or joint marketing arrangement or Contract;
(t) waive any stock repurchase rights or right of first refusal, accelerate, amend or change the period of exercisability of Company Options or Company Warrants or reprice Company Options or Company Warrants granted under any employee, consultant, director or other stock plan (whether by mergerincluding the Company Stock Option Plan), consolidation or otherwise); authorize any cash or equity exchange for any Company Options or Company Warrants granted under any of such plans;
(xiiiu) make any capital expenditures in excess of $10,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xv) enter into, adopt, amend, modify or terminate any Company Employee PlanCritical Person or Key Employee, or increase the benefits thereunder, except as encourage or otherwise required pursuant cause any Critical Person or Key Employee to this Agreement; (xvi) establish, grant, pay or increase or agree to establish, grant, pay or increase any form of compensation or benefits to any director or Employee of the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment of, or funding or in any other way securing the payment of, compensation or benefits under any Company Employee Plan, except as required under a Company Employee Plan as of the date hereof and made available to Acquiror; (xviii) hire or terminate any director, officer, advisor, consultant or employee of resign from the Company or any Company Subsidiary, except for cause, of its Subsidiaries.
(xixv) send any written communications (including electronic communications) to any employees of the Company or the Company Subsidiaries its Employees regarding this Agreement or the transactions contemplated hereby that would be required to be filed with the SEC under Regulation M-A;
(w) make any representations or make issue any communications to the employees of the Company or the Company Subsidiaries Employees that are inconsistent with this Agreement or the transactions contemplated herebythereby, including any representations regarding offers of employment from Parent;
(x) alter, or enter into any commitment to alter, its interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(y) cancel or materially amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) any insurance policy of the Company or any of its Subsidiaries;
(z) grant any Lien on any of its material properties or assets; or or
(xxaa) take take, commit, or agree in writing or otherwise to take, any of the actions described in clauses (iSections 5.2(a) through (xix) in this Section 4.25.2(z).
Appears in 1 contract
Restrictions on Conduct of Company Business. Except During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement or the Effective Time, except as expressly set forth in Schedule Section 4.2 hereto or as expressly contemplated by of the terms of this AgreementDisclosure Schedule, the Company shall not, not (and shall cause ensure that each Company Subsidiary not toshall not), without the prior written consent of Acquiror: , which consent shall not be unreasonably withheld, delayed or conditioned:
(a) cause or permit any modifications, amendments or changes to the Charter Documents or the Subsidiary Charter Documents (other than the Certificate Amendment);
(b) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock, limited liability interests, or other Equity Interests of any Company Subsidiary, or split, combine or reclassify any Company Capital Stock or the capital stock, limited liability interest, or other equity interest of any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock, limited liability interest, or other equity interest of any Company Subsidiary, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock or the capital stock, limited liability interest, or other equity interest of any Company Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable for Company Common Stock or the capital stock, limited liability interest, or other equity [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. interest of any Company Subsidiary) except in accordance with the agreements evidencing Company Options and Company Warrants;
(c) issue, grant, deliver, sell or purchase any Company Capital Stock or equity-based awards (whether payable in cash, stock or otherwise) or the capital stock of any Company Subsidiary or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities, except for the issuance of Company Common Stock pursuant to the exercise of Company Options and Company Warrants outstanding as of the date of this Agreement;
(d) form a subsidiary or acquire an interest in any corporation, association, joint venture, partnership or other business entity or division thereof;
(e) make any capital expenditure exceeding $50,000 in the aggregate;
(f) other than in the usual, regular and ordinary course consistent with past practice, (i) enter into dispose of any transaction or undertake any action, or omit to take any action, that would reasonably be expected to result in a Material Adverse Effect; (ii) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant or permit any Encumbrance on any of the Company’s properties or assets (whether tangible or intangible)) of the Company or any Company Subsidiary or (ii) acquire any assets of any business enterprise or division thereof;
(g) other than entering into agreements with customers in the usual, except in favor regular and ordinary course of Silicon Valley Bank; business consistent with past practice, enter into any agreement, contract or commitment for the (ivi) sell, transfer, assign, conveysale, lease, license or transfer of any Company Intellectual Property or any agreement contract or commitment or modification or amendment to any agreement with respect to Company Intellectual Property with any Person, (ii) purchase or license of any Technology or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Technology or Intellectual Property Rights of any Person, or (iii) change in pricing or royalties set or charged by the Company or any Company Subsidiary to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights to the Company or any Company Subsidiary;
(h) abandon, cancel or commit any action or omission regarding the relinquishment or right to a patent, patent application, or other Intellectual Property Right;
(i) incur any Indebtedness (other than the obligation to reimburse current Company Employees for reasonable travel and business expenses or indebtedness incurred in connection with the purchase of goods and services, in each case, other than in the usual, regular and ordinary course consistent with past practice), issue or sell any debt securities, create an Encumbrance over any asset of the Company or any Company Subsidiary or amend the terms of any outstanding loan agreement;
(j) make any loan to any Person (except for advances to employees for reasonable business travel and expenses in the ordinary course of business consistent with past practice), purchase debt securities of any Person or guarantee any Indebtedness of any Person;
(k) commence any Action or settle any Action or threat of any Action by or against the Company or any Company Subsidiary or relating to any of their businesses, properties or assets, or any of their respective Company Employees (in their capacities as such or relating to their employment, services, or relationship with the Company or a Company Subsidiary); [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(l) pay, discharge, release, waive or satisfy any claims, rights or liabilities, other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected on the Current Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date;
(m) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates or any change to practices that would impact the methodology for recognizing revenue) other than as required by GAAP;
(n) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any agreement in respect of Taxes, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, make or request any Tax ruling, enter into any Tax sharing or similar agreement or arrangement, enter into any transactions giving rise to deferred gain or loss, amend any Tax Return or file any income Tax Return or other material Tax Return unless a non-exclusive basis copy of such income or other material Tax Return has been submitted to Acquiror for review and comment prior to filing;
(o) (i) adopt, amend or terminate, or start a termination process of, any Company Employee Plan (other than as expressly required pursuant to Standard Form Out-Licenses Section 5.10(c) of this Agreement or any applicable Legal Requirements), (ii) adopt, amend or terminate, or start a termination process of, any Company Employee Agreement, including any indemnification agreement, (iii) enter into or amend any Company Employee Agreement or (iv) otherwise hire any Person as a Company Employee;
(p) increase or make any other change that would result in increased cost to the Company or any Company Subsidiary to the salary, wage rate, employment status, title or other compensation (including equity based compensation) payable or to become payable by the Company or any Company Subsidiary to any current Company Employee;
(q) make any declaration, payment, commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) of a severance payment or other change in control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any Company Employee, except payments made pursuant to written agreements existing on the Agreement Date and disclosed in Section 2.18(a) of the Disclosure Schedule;
(r) amend any Company Privacy Policy, or publish any new Company Privacy Policy;
(s) take any action to accelerate or otherwise modify the terms of any of the outstanding Company Options or Company Warrants, except as expressly required by this Agreement;
(t) other than to the extent required by any applicable Legal Requirement, send any written communications (including electronic communications) to Company Employees regarding this Agreement or the transactions contemplated hereby or make any representations or issue any communications to Company Employees that are inconsistent with this Agreement or the transactions contemplated hereby, including any representations regarding offers of employment from Acquiror;
(u) cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or otherwise dispose of any material portion of the Company’s assets; fail to renew (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion of the Company or any Company Subsidiary or any of their respective assets, whether by merger, share purchase, license or otherwise (other than non-exclusive agreements to license or provide products of the Company to end-users pursuant to Standard Form Out-Licenses that have been entered into in the ordinary course of business consistent with past practices); (vi) enter into, amend, waive any rights under or terminate any
(a) issue, deliver or sell, or authorize the issuance, delivery or sale of (1on substantially similar terms) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrants, or shares of Company Preferred Stock, in each case outstanding on the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable for, any shares of Company Capital Stock, or (b) amend any terms of any Company Capital Stock, Company Options or Company Warrants (whether by merger, consolidation or otherwise); (xiii) make any capital expenditures in excess of $10,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xv) enter into, adopt, amend, modify or terminate any Company Employee Plan, or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; (xvi) establish, grant, pay or increase or agree to establish, grant, pay or increase any form of compensation or benefits to any director or Employee of the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment of, or funding or in any other way securing the payment of, compensation or benefits under any Company Employee Plan, except as required under a Company Employee Plan as of the date hereof and made available to Acquiror; (xviii) hire or terminate any director, officer, advisor, consultant or employee insurance policy of the Company or any Company Subsidiary; [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(v) (i) terminate, except for causeamend, (xix) send waive, or modify in any written communications (including electronic communications) material manner relative to any employees of the Company such Contract or the Company’s or any Company Subsidiaries regarding this Agreement Subsidiary’s businesses or operations, or violate, the transactions contemplated hereby terms of any Material Contract, or make (ii) enter into any communications Contract which would have constituted a Material Contract had such Contract been entered into prior to the employees of the Company or the Company Subsidiaries that are inconsistent with this Agreement or the transactions contemplated herebyDate; or or
(xxw) take take, commit, authorize, propose, or agree or otherwise to take, any of the actions described in clauses (ia) through (xixv) in of this Section 4.2.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Quotient Technology Inc.)
Restrictions on Conduct of Company Business. Except as set forth in Schedule 4.2 hereto or as expressly contemplated by the terms of this Agreement, the The Company shall not, and shall cause each Company Subsidiary of its Subsidiaries not to, without the prior written consent of Acquiror: Parent:
(ia) cause or permit any modifications, amendments or changes to the Charter Documents;
(b) undertake any expenditure, transaction or commitment exceeding $10,000 individually or any commitment or transaction of the type described in Section 3.14(a);
(c) pay, discharge, waive or satisfy, in an amount in excess of $10,000, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise);
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates, or revenue recognition policies) other than as required by GAAP;
(e) make or change any material Tax election, adopt or change any Tax accounting method, enter into any transaction closing agreement in respect of Taxes, settle or undertake compromise any actionmaterial Tax claim or assessment, consent to any extension or omit waiver of the limitation period applicable to take any actionmaterial Tax claim or assessment or file any income, that would reasonably be expected franchise or other material Return or any amended Return unless a copy of such Return has been delivered to result in Parent for review a Material Adverse Effect; reasonable time prior to filing, and Parent has approved such Return;
(iif) amend its certificate of incorporation or bylaws (whether by merger, consolidation or otherwise); (iii) grant or permit any Encumbrance on revalue any of the Company’s properties or its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for, Company Common Stock) except in favor accordance with the Contracts evidencing Company Options;
(h) adopt, terminate or amend any Company Employee Plan, enter into, terminate or amend any Employee Agreement, increase, decrease or otherwise change the salary, bonus, wage rates, fringe benefits, or other compensation (including equity based compensation) payable or to become payable to any Employee, or make any declaration, promise, payment or commitment or obligation of Silicon Valley Bank; any kind for the payment (ivwhether in cash or equity or otherwise) sellof a severance payment, transfertermination payment, assignChange of Control Payment, conveybonus, leasespecial remuneration or other additional salary or compensation (including equity based compensation) to any director, license officer, or Employee, except payments made pursuant to written Contracts existing on the date hereof and disclosed in Section 5.2(h) of the Disclosure Schedule, or increase rights to indemnification for any Employee;
(i) other than on a entering into non-exclusive basis pursuant licenses and related Contracts with respect to Standard Form Out-Licenses in the ordinary course of business consistent with past practices) or otherwise dispose of any material portion of the Company’s assets; (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion provision of the Company Products or any Company Subsidiary or any of their respective assets, whether by merger, share purchase, license or otherwise (other than non-exclusive agreements Services to license or provide products of the Company to end-users customers pursuant to Standard Form Out-Licenses that have been written Contracts entered into in the ordinary course of business consistent with past practices and that do not materially differ in substance from the Company IP Forms involving aggregate payments to the Company of less than $10,000, (i) sell, lease, license, transfer or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except for the sale of properties or assets (whether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practices); , (viii) sell, lease, license, transfer or otherwise dispose of or grant to any Person any rights to any Company Intellectual Property, (iii) enter intointo any Contract or modify or amend any existing Contract with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person, amend(iv) purchase, waive acquire, or license any rights under Intellectual Property or terminate anyenter into any Contract or modify or amend any existing Contract with respect to the Intellectual Property of any Person or (v) enter into any Contract or modify or amend any existing Contract with respect to the development of any Intellectual Property with a third party;
(aj) issue or agree to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries;
(k) make any loan to any Person, or forgive any loan to any Person, or purchase debt securities of any Person or amend the terms of any outstanding loan Contract;
(l) incur any Indebtedness, or amend the terms of any outstanding Contract in respect of Indebtedness;
(m) waive or release any right or claim of the Company or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its Subsidiaries;
(n) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or any of its Subsidiaries or relating to any of their respective business, properties or assets;
(o) issue, grant, deliver or sell, sell or authorize or propose the issuance, grant, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrantsof, or shares of Company Preferred Stock, in each case outstanding on purchase or propose the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable forpurchase of, any shares of Company Capital Stock, or (b) amend any terms of securities convertible into or exercisable or exchangeable for any Company Capital Stock, or subscriptions, rights, warrants or options to acquire any Company Capital Stock, or other Contracts or commitments of any character obligating any of them to issue or purchase any Company Capital Stock or other convertible securities, except for the issuance of Company Common Stock pursuant to the exercise of outstanding Company Options and Company Warrants (including any amendments to such Company Options or Company Warrants agreements as are mutually agreed to by Parent and Company);
(whether by mergerp) enter into or amend any Contract pursuant to which any other party is granted marketing, consolidation distribution, development, delivery, manufacturing or otherwise); similar rights of any type or scope with respect to any Company Products or Services;
(xiiiq) make enter into any capital expenditures Contract to purchase or sell any interest in excess of $10,000; (xiv) liquidatereal property, dissolve or effect a recapitalization or reorganization grant any security interest in any form of transaction; (xv) real property, enter intointo any lease, adoptsublease, license or other occupancy Contract with respect to any real property or renew, alter, amend, modify or terminate any Company Employee Planof the terms of any Lease Agreement;
(r) terminate, amend or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; modify (xvi) establish, grant, pay or increase or agree to establishdo so), grant, pay or increase any form of compensation or benefits to any director or Employee of violate the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment terms of, or funding make any payments resulting from agreed upon early termination of, any of the Contracts set forth or described in the Disclosure Schedules;
(s) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities, that are material individually or in the aggregate, to the Company’s or any other way securing of its Subsidiaries’ business;
(t) waive any stock repurchase rights or right of first refusal, accelerate, amend or change the payment ofperiod of exercisability of Company Options, compensation Company Warrants or benefits Company Restricted Stock, or reprice Company Options or Company Warrants granted under any employee, consultant, director or other stock plan (including the Plan), or authorize any cash or equity exchange for any Company Employee Plan, except as required Options or Company Warrants granted under a Company Employee Plan as any of the date hereof and made available to Acquiror; such plan;
(xviiiu) hire or terminate any directorEmployee, officer, advisor, consultant or employee of encourage or otherwise cause any Employee to resign from the Company or any Company Subsidiary, except for cause, of its Subsidiaries;
(xixv) send any written communications (including electronic communications) to any employees of the Company or the Company Subsidiaries its Employees regarding this Agreement or the transactions contemplated hereby or make hereby, including any communications to the employees communication regarding offers of the Company or the Company Subsidiaries that are employment from Parent;
(w) inconsistent with this Agreement or the transactions contemplated hereby; or (xx) take or agree to takethereby, including any representations regarding offers of the actions described in clauses (i) through (xix) in this Section 4.2.employment from Parent;
Appears in 1 contract
Samples: Merger Agreement (Solta Medical Inc)
Restrictions on Conduct of Company Business. Except as for the matters and actions set forth in on Schedule 4.2 hereto or as expressly contemplated by the terms of this Agreement5.2, the Company shall not, and shall cause each Company Subsidiary of its Subsidiaries not to, without the prior written consent of Acquiror: Parent, except to the extent required by applicable Law (in which case, the Company shall (i) provide Parent advance notice of its intention to take actions required by applicable Law, (ii) discuss such actions with Parent and (iii) cooperate with Parent and take only those actions actually required for the Company to comply with applicable Law):
(a) cause or permit any modifications, amendments or changes to the Charter Documents;
(b) undertake any expenditure, transaction or commitment (or a series of related expenditures, transactions or commitments) exceeding $250,000 individually;
(c) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates, or revenue recognition policies) other than as required by GAAP;
(d) make or change any material Tax election, adopt or change any Tax accounting method, enter into any transaction material closing agreement in respect of Taxes, settle or undertake compromise any actionmaterial Tax claim or assessment, consent to any extension or omit waiver of the limitation period applicable to take any actionmaterial Tax claim or assessment or file any income, that would reasonably be expected to result franchise or other material Return other than in a Material Adverse Effect; the ordinary course of business consistent with past practice;
(iie) amend revalue any of its certificate of incorporation or bylaws assets (whether by mergertangible or intangible), consolidation or otherwise); including writing down the value of inventory (iii) grant or permit any Encumbrance on any other than in the ordinary course of the Company’s business as required by GAAP) or writing off notes or accounts receivable;
(f) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for, Company Common Stock) except in accordance with the Contracts evidencing Company Options;
(g) adopt, terminate or amend any Company Employee Plan, enter into, terminate or amend any Employee Agreement (other than with International Employees or hiring International Employees in the ordinary course of business), increase, decrease or otherwise change the salary, bonus, wage rates, fringe benefits, or other compensation (including equity based compensation) payable or to become payable to any Employee, or make any declaration, promise, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) of a severance payment, termination payment, change of control payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any director, officer, or Employee, except payments made pursuant to written Contracts existing on the date hereof and disclosed in Section 5.2(g) of the Disclosure Schedule, or increase rights to indemnification for any Employee;
(h) other than entering into non-exclusive licenses and related Contracts with respect to the sale or licensing of the Company Products or Services to end users pursuant to written Contracts entered into in the ordinary course of business consistent with past practices and that do not materially differ in substance from the Company’s standard form(s) including attachments, (i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except for the sale of properties or assets (whether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practices, or transfer to any Person any rights to any Company Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person, (ii) purchase or license any Intellectual Property or enter into any Contract or modify or amend any existing Contract with respect to the Intellectual Property of any Person or (iii) enter into any Contract or modify or amend any existing Contract with respect to the development of any Intellectual Property with a third party;
(i) make any loan to any Person (except for reasonable advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), except in favor or forgive any loan to any Person, or purchase debt securities of Silicon Valley Bank; any Person or amend the terms of any outstanding loan Contract;
(ivj) sell, transfer, assign, convey, lease, license incur any Indebtedness (other than on a non-exclusive basis (i) the incurrence of additional Indebtedness pursuant to Standard Form Outthe terms of Contracts in effect on the date hereof that are listed in the Disclosure Schedules or (ii) the obligation to reimburse employees for travel and business expenses or indebtedness incurred in connection with the purchase of goods and services in the ordinary course of business consistent with past practices), or amend the terms of any outstanding Contract in respect of Indebtedness;
(k) waive or release any right or claim of the Company or any of its Subsidiaries, including any write-Licenses off or other compromise of any account receivable of the Company or any of its Subsidiaries, in excess of $50,000 individually or $250,000 in the aggregate;
(l) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or any of its Subsidiaries or relating to any of their respective business, properties or assets;
(m) issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Company Capital Stock, or any securities convertible into or exercisable or exchangeable for any Company Capital Stock, or subscriptions, rights, warrants or options to acquire any Company Capital Stock, or other Contracts or commitments of any character obligating any of them to issue or purchase any Company Capital Stock or other convertible securities, except for the issuance of Company Common Stock pursuant to the exercise of outstanding Company Options and Company Warrants (including any amendments to such Company Options or Company Warrants agreements as are mutually agreed to by Parent and Company);
(n) enter into any Material Contracts, other than in the ordinary course of business consistent with past practice;
(o) enter into any Contract to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy Contract with respect to any real property or renew, alter, amend, modify or terminate any of the terms of any Lease Agreement;
(p) terminate, amend or otherwise modify (or agree to do so), or make any payments resulting from agreed upon early termination of, any of the Contracts set forth or described in the Disclosure Schedules;
(q) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities, that are material individually or in the aggregate, to the Company’s or any of its Subsidiaries’ business;
(r) enter into any strategic alliance, affiliate Contract or joint marketing arrangement or Contract;
(s) waive any stock repurchase rights or right of first refusal, accelerate, amend or change the period of exercisability of Company Options, Company Warrants or Company Restricted Stock, or reprice Company Options or Company Warrants granted under any employee, consultant, director or other stock plan (including the Plan), or authorize any cash or equity exchange for any Company Options or Company Warrants granted under any of such plan, in each case other than entering into a Warrant Termination Agreement;
(t) make any representations or issue any communications to Employees that are inconsistent with this Agreement or the transactions contemplated thereby, including any representations regarding offers of employment from Parent;
(u) alter, or enter into any commitment to alter, its interest in any Subsidiary;
(v) cancel or amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or otherwise dispose of any material portion of the Company’s assets; (v) enter into any Contract for the purchase, sale, transfer, license or other disposition of all or any portion insurance policy of the Company or any Company Subsidiary of its Subsidiaries; or
(w) take, commit, or any of their respective assets, whether by merger, share purchase, license agree in writing or otherwise (other than non-exclusive agreements to license or provide products of the Company to end-users pursuant to Standard Form Out-Licenses that have been entered into in the ordinary course of business consistent with past practices); (vi) enter into, amend, waive any rights under or terminate any
(a) issue, deliver or sell, or authorize the issuance, delivery or sale of (1) any shares of Company Capital Stock, other than shares of Company Capital Stock issued upon exercise or conversion of Company Options, Company Warrants, or shares of Company Preferred Stock, in each case outstanding on the Agreement Date and disclosed on the Disclosure Schedule, or (2) any securities ultimately convertible into, or exercisable or exchangeable for, any shares of Company Capital Stock, or (b) amend any terms of any Company Capital Stock, Company Options or Company Warrants (whether by merger, consolidation or otherwise); (xiii) make any capital expenditures in excess of $10,000; (xiv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xv) enter into, adopt, amend, modify or terminate any Company Employee Plan, or increase the benefits thereunder, except as otherwise required pursuant to this Agreement; (xvi) establish, grant, pay or increase or agree to establish, grant, pay or increase any form of compensation or benefits to any director or Employee of the Company; (xvii) grant any equity or equity-linked awards or any other cash bonus, incentive, performance or other incentive compensation or accelerate the vesting or payment of, or funding or in any other way securing the payment of, compensation or benefits under any Company Employee Plan, except as required under a Company Employee Plan as of the date hereof and made available to Acquiror; (xviii) hire or terminate any director, officer, advisor, consultant or employee of the Company or any Company Subsidiary, except for cause, (xix) send any written communications (including electronic communications) to any employees of the Company or the Company Subsidiaries regarding this Agreement or the transactions contemplated hereby or make any communications to the employees of the Company or the Company Subsidiaries that are inconsistent with this Agreement or the transactions contemplated hereby; or (xx) take or agree to take, any of the actions described in clauses (iSections 5.2(a) through (xix) in this Section 4.25.2(v).
Appears in 1 contract
