Restrictions on Conduct of the Business. Without limiting the generality or effect of the provisions of Section 5.1 and subject to applicable Law, except as expressly set forth on Section 5.2 of the Disclosure Schedule, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not cause or permit any of the following (except to the extent expressly provided otherwise herein or as consented to in advance in writing by Parent) (such consent, not to be unreasonably delayed, conditioned or withheld in the case of clauses (c), (d), (e), (k), (l), (p), (s) or (w))): (a) amend its Charter Documents or equivalent organizational or governing documents; (b) merge or consolidate itself with any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization; (c) declare or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any of its Equity Interests, or split, combine or reclassify any of its Equity Interests or issue or authorize the issuance of any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity Interests, or repurchase or otherwise acquire, directly or indirectly, any of its Equity Interests except for purchases from former employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service and issuances in connection with the exercise of any Company Options that are outstanding as of the Agreement Date; (d) (i) enter into, amend, renew or modify any (A) Contract that would (if entered into, amended, renewed or modified prior to the Agreement Date) constitute a Material Contract other than in the Ordinary Course of Business, (B) Material Contract other than in the Ordinary Course of Business or (B) Contract requiring a novation or consent in connection with the Merger or the other transactions contemplated by this Agreement, (ii) violate, terminate or materially amend, any Material Contract, or (iii) enter into, materially amend or terminate any Contract, which if so entered into, amended or terminated would be reasonably likely to (A) result in a Materially Adverse Effect to the Company (or, following consummation of the Merger, Parent or any of its Affiliates), (B) materially impair the ability of the Company or the Stockholder Representative to perform their respective obligations under this Agreement or (C) prevent or materially delay or impair the consummation of the Merger and the other transactions contemplated hereby; (e) issue, deliver, grant or sell or authorize or propose the issuance, delivery, grant or sale of, or purchase or propose the purchase of, any Company Voting Debt or any Equity Interests, or enter into or authorize or propose to enter into any Contracts of any character obligating it to issue any Equity Interests, other than: (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options that are outstanding as of the Agreement Date, (ii) the issuance of shares of Company Capital Stock pursuant to the exercise of Company Warrants and (iii) the repurchase of any shares of Company Capital Stock from former employees, non-employee directors and consultants in accordance with Contracts providing for the repurchase of shares in connection with any termination of service; Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. (f) other than in the Ordinary Couse of Busines (i) hire, or offer to hire, any additional officers or other employees, or engage any consultants or independent contractors with annualized compensation at or above $150,000, (ii) terminate the employment (without cause) change the title, compensation, office or position or materially alter the responsibilities or terms and conditions of employment of any employee of the Company with annualized compensation at or above $150,000, (iii) enter into, amend or extend the term of any employment or consulting agreement, bonus arrangement, severance agreement, retention bonus, or change of control agreement with, or Company Option held by, any officer, employee, consultant or independent contractor, (iv) enter into any Contract with a labor union or collective bargaining agreement (unless required by Law) or (v) add any new members to the Board; (g) make any loans or advances (other than routine expense advances to employees of the Company consistent with past practice) to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money; (h) except for non-exclusive licenses granted in the Ordinary Course of Business, transfer or license to or from any Person any rights to any Intellectual Property Rights or Technology, or transfer or provide a copy of any Company Source Code to any Person (other than providing access to Company Source Code to current employees and consultants of the Company involved in the development of the Company Products on a need to know basis in the Ordinary Course of Business and provided each such employee or consultant has executed a Personnel Agreement); (i) abandon or permit to lapse any material Company Registered IP; (j) sell, lease, license or otherwise dispose of or encumber (other than Permitted Liens) any of its properties or assets, other than non-exclusive licenses in the Ordinary Course of Business, or enter into any Contract with respect to the foregoing; (k) enter into any operating lease in excess of $50,000 or any leasing transaction of the type required to be capitalized in accordance with GAAP; (l) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others in excess of $100,000; (m) (i) defer payment of any accounts payable other than in the Ordinary Course of Business, or (ii) give any discount, accommodation or other concession other than in the Ordinary Course of Business, in order to accelerate or induce the collection of any receivable outside of the Ordinary Course of Business; (n) make any capital expenditures, capital additions or capital improvements in excess of $50,000 individually or $125,000 in the aggregate; (o) materially change the amount of, or terminate, any insurance coverage; (p) cancel, release or waive any material claims or material rights held by the Company; (q) (i) adopt, establish, enter into, terminate, discontinue or materially amend any Company Employee Plan, except in each case as required under ERISA, applicable Law or pursuant to the terms of any Company Employee Plan or as necessary to maintain the qualified status of such plan under applicable Law or (ii) materially increase the compensation or benefits of any director, officer or the Key Employee other than as required by Law or existing contractual arrangement and other than any bonus or similar payments the payment of which would be reflected in the determination of Closing Cash or Third Party Expenses; (r) grant or pay, or enter into any Contract providing for the granting or payment of any severance, change of control, retention or termination pay or benefits to any Person (other than payments or benefits Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. provided pursuant to preexisting plans, policies or Contracts that have been disclosed to Parent in the Disclosure Schedule); (s) (i) commence a lawsuit other than (A) for the routine collection of bills, (B) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business (provided that the it notifies Parent promptly following the filing of such a suit) or (C) for a breach of this Agreement or (ii) settle or agree to settle any pending or threatened lawsuit or other dispute; (t) acquire or agree to acquire by merging or consolidating with, or by purchasing all or substantially all of the assets 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 that are material, individually or in the aggregate, to its business, or enter into any Contract with respect to a joint venture, strategic alliance or partnership, in each case other than acquisitions of inventory or equipment in the Ordinary Course of Business; (u) make, change or revoke any income or other material Tax election, adopt (other than in the Ordinary Course of Business) or change any material Tax accounting method or period, file any federal, state, local or non-U.S. income Tax Return or other material Tax Return, file any amended Tax Return, enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of applicable state, local or non-U.S. Law), voluntary disclosure application or agreement or similar process, apply for any Tax ruling, settle or compromise any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, enter into any Tax allocation Contract, Tax sharing Contract, Tax indemnity Contract (other than any of the foregoing Contracts that is a Commercial Tax Agreement), or surrender any right to claim a material Tax refund; (v) change accounting methods or practices (including any change in depreciation or amortization policies) or revalue any of its assets (including writing down the value of inventory or writing off notes or accounts receivable otherwise than in the Ordinary Course of Business), except in each case as required by changes in GAAP or Law; (w) enter into any agreement for the purchase, sale or lease of any real property; (x) place or allow the creation of any Lien (other than a Permitted Lien) on any of its properties; and (y) materially change the manner in which it provides warranties, discounts or credits to customers; (z) take or agree in writing or otherwise to take, any of the actions described in clauses (a) through (y). The foregoing shall be limited to the extent it would cause Parent to control the Company in violation of the HSR Act or other antitrust Law.
Appears in 1 contract
Samples: Merger Agreement (Cardlytics, Inc.)
Restrictions on Conduct of the Business. Without limiting the generality or effect of the provisions of Section 5.1 and subject to applicable Law7.1, except (i) as expressly set forth on Section 5.2 7.2 of the Company Disclosure Schedule, (ii) as provided otherwise in this Agreement or the Related Agreements, (iii) as consented to in advance in writing by Buyer (such consent not to be unreasonably withheld, conditioned or delayed), (iv) as required by applicable Laws (including any COVID-19 Measures), or (v) for any COVID-19 Response, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective TimeClosing, the Company shall not, and shall cause each of its Subsidiaries not cause or permit any of the following (except to the extent expressly provided otherwise herein or as consented to in advance in writing by Parent) (such consent, not to be unreasonably delayed, conditioned or withheld in the case of clauses (c), (d), (e), (k), (l), (p), (s) or (w))):to:
(a) amend its Charter Documents or equivalent organizational or governing documents;
(b) merge or consolidate itself with any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;
(c) declare or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any of its Equity InterestsInterests (other than cash dividends or distributions made prior to the Closing; provided that in no event shall the Closing Cash Amount be less than $1,250,000), or split, combine or reclassify any of its Equity Interests or issue or authorize the issuance of of, or commit to issue (whether subject to approval by the Board or otherwise) any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity InterestsInterests (other than the issuance of shares of Company Stock in connection with the exercise of any Company Options outstanding as of the Agreement Date), or repurchase or otherwise acquire, directly or indirectly, any of its Equity Interests except for purchases from former employeesEmployees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service and issuances in connection with the exercise of any Company Options that are outstanding as of the Agreement Dateservice;
(d) (i) enter into, amend, renew amend or modify any (A) any Material Contract or (B) any Contract that would (if entered into, amended, renewed amended or modified prior to the Agreement Date) constitute a Material Contract (other than than, in each case of clauses (A) and (B), in the Ordinary Course of Business), or (Bii) terminate any Material Contract (other than non-renewals occurring in the Ordinary Course of Business or (B) Contract requiring a novation any termination or consent in connection with the Merger or the other transactions contemplated by this Agreement, (ii) violate, terminate or materially amend, expiration of any Material Contract, or (iii) enter into, materially amend or terminate any Contract, which if so entered into, amended or terminated would be reasonably likely to (A) result Contract in a Materially Adverse Effect to the Company (or, following consummation of the Merger, Parent or any of accordance with its Affiliatesterms), (B) materially impair the ability of the Company or the Stockholder Representative to perform their respective obligations under this Agreement or (C) prevent or materially delay or impair the consummation of the Merger and the other transactions contemplated hereby;
(e) issue, deliver, grant or sell or authorize or propose the issuance, delivery, grant or sale of, or purchase or propose the purchase of, any Company Voting Debt or any Equity InterestsInterests (except (i) for purchases from former Employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service or (ii) for issuances of shares of Company Stock in connection with the exercise of any Company Options outstanding as of the Agreement Date), or enter into or authorize or propose to enter into any Contracts of any character obligating it to issue any Equity Interests, other than: (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options that are outstanding as of the Agreement Date, (ii) the issuance of shares of Company Capital Stock pursuant to the exercise of Company Warrants and (iii) the repurchase of any shares of Company Capital Stock from former employees, non-employee directors and consultants in accordance with Contracts providing for the repurchase of shares in connection with any termination of service; Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed.;
(f) other than in the Ordinary Couse of Busines (i) hire, hire or re-hire or offer to hire or re-hire, any additional officers officer or employee or any advisor, consultant, or independent contractor or other employeesservice provider who is a natural person (or an entity controlled by a natural person who is or who is affiliated with the primary person providing the underlying services), in each case, with an annual base salary or annual fee rates greater than $200,000 (except to fill any vacancy due to (A) the termination by any Acquired Company of any employee for cause, (B) any voluntary resignation by an employee, or engage (C) the death or permanent disability of any consultants employee, in each case, so long as the role being filled is substantially similar to the applicable vacancy and includes salary or independent contractors with annualized compensation at wages, as applicable, and other employment terms that are no more favorable in all material respects to the replacement employee than the salary or above $150,000wages, as applicable, and other employment terms applicable to the employee whose departure created the applicable vacancy), (ii) terminate (other than for cause or due to death or permanent disability) the employment (without cause) change the title, compensation, office or position or materially alter the responsibilities or terms and conditions of employment of any employee of the Company with annualized compensation at or above annual base salary greater than $150,000200,000, (iii) enter intoincrease, amend or extend make any commitment to increase, the term amount of annual base salary or annual fee rate of any employment officer or consulting agreementemployee or any advisor, bonus arrangement, severance agreement, retention bonusconsultant, or change independent contractor or other service provider who is a natural person, in each case, with an annual base salary or annual fee rate greater than $200,000, except, with respect to no more than ten (10) employees (including no more than four (4) officers) in the aggregate, for any such increase of control agreement with, or Company Option held by, any officer, ’s or employee, consultant or independent contractor’s base salary in the Ordinary Course of Business that does not exceed ten percent (10%) of such Person’s annual base salary, (iv) enter into any severance agreement (other than any severance agreement pursuant to which any amounts payable thereunder are paid by an Acquired Company in full prior to the Closing) or any bonus, incentive compensation, or commission agreement or arrangement (other than (A) pursuant to which any amounts payable thereunder are paid by the Company in full prior to the Closing, (B) any bonus, incentive compensation or commission agreement or arrangement entered into with any employee who is hired by any Acquired Company in compliance with clause (i) of this Section 7.2(f) consistent with past practice, or (C) any bonus, incentive compensation or commission agreement or arrangement entered into in the Ordinary Course of Business that does not exceed $25,000 for any individual employee; provided, that, except in the case of any bonuses that are included in the Accrued 2021 Bonus Amount, any such bonus obligations and arrangements are paid prior to the Closing), (v) amend, extend or renew any employment or service provider agreement with any officer or employee or any advisor, consultant, or independent contractor or other service provider who is a natural person (or an entity controlled by a natural person who is or who is affiliated with the primary person providing the underlying services), in each case, with an annual base salary or annual fee rates greater than $200,000, (vi) recognize or enter into any Contract or other agreement with a any labor organization or union or collective bargaining agreement (unless except as otherwise required by Law), (vii) implement any mass layoff or any other employment action that would incur WARN obligations, or (vviii) add any new members to the BoardBoard (other than pursuant to preexisting plans, policies or Contracts that have been disclosed to Buyer and are set forth on Section 3.19(a) of the Company Disclosure Schedule);
(g) make any loans or advances (other than routine expense advances to employees employees, directors or officers of the Company consistent with past practiceor any Subsidiary of the Company in the Ordinary Course of Business) to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed moneymoney (other than any prepayment of any indebtedness for borrowed money at any time prior to the Closing);
(h) except for non-exclusive licenses granted in connection with the provision of the Company Products (not including rights in any Company Source Code) and the Company services in the Ordinary Course of Business, transfer transfer, sell, or license to or from any Person any rights to any Intellectual Property Rights or TechnologyRights, or transfer or provide a copy of any Company Source Code to any Person (including any current or former Employee or consultant of the Company or any Subsidiary of the Company or any contractor or commercial partner of the Company or any Subsidiary of the Company) (other than providing access to Company Source Code to current employees Employees and consultants of the Company or any Subsidiary of the Company involved in the development of the Company Products on a need to know basis in the Ordinary Course of Business and provided each such employee Employee or consultant has executed a Personnel Agreement);
(i) abandon enter into any agreement with respect to the development of any Intellectual Property Rights or permit to lapse any material Company Registered IPTechnology with a third party except in the Ordinary Course of Business;
(j) abandon, let lapse or take (or fail to take) any other action regarding any item of Company Registered IP, other than prosecution activities pertaining to registration, maintaining, perfecting and renewing Company Registered IP in the Ordinary Course of Business;
(k) materially amend or modify any Privacy Statement of the Company or any of its Subsidiaries;
(l) enter into any license, distribution, reseller, OEM, joint venture or joint marketing or any similar arrangement or agreement (other than nonexclusive arrangements entered in the Ordinary Course of Business);
(m) sell, lease, license or otherwise dispose of or encumber (other than Permitted Liens) any of its material properties (including, without limitation, the Leased Real Property) or assets, other than non-exclusive licenses in the Ordinary Course of Business, material tangible assets or enter into any Contract with respect to the foregoing, except, in each case, for (i) sales of obsolete assets or assets with de minimis or no book value or (ii) in the Ordinary Course of Business;
(kn) enter into any operating lease of personal property with payment obligations on the part of any Acquired Company in excess of $50,000 or 250,000 in any leasing transaction of the type required to be capitalized in accordance with GAAPtwelve (12) month period;
(lo) enter into, amend, renew, modify or waive the terms of any Lease Agreement;
(p) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others (other than, subject to Section 7.2(z) below, any indebtedness or debt securities which will be paid off in excess of $100,000full (or guarantee which will be paid off or terminated in full) at or prior to the Closing);
(mq) (i) defer payment enter into any Contract for the commitment of any accounts payable other than in the Ordinary Course of Business, or (ii) give any discount, accommodation or other concession other than in the Ordinary Course of Business, in order to accelerate or induce the collection of any receivable outside of the Ordinary Course of Business;
(n) make any capital expenditures, capital additions or capital improvements in excess to the extent that more than $2,000,000 of $50,000 individually or $125,000 such commitments in the aggregateaggregate remains unpaid as of the Closing;
(or) materially change reduce the amount of, or voluntarily terminate, any insurance coverage unless such terminated insurance coverage is replaced prior to the Closing with substantially similar coverage;
(ps) cancelexcept in each case as required by a Company Employee Plan in effect on the Agreement Date and disclosed on Section 3.19(a) of the Company Disclosure Schedule, release or waive any material claims applicable Law or material rights held by as necessary to maintain the Company;
(q) qualified status of such plan under applicable Law, (i) adopt, establish, enter into, terminate, discontinue or materially amend any Company Employee Plan, except in each case as required under ERISA, applicable Law or pursuant to the terms of any Company Employee Plan or as necessary to maintain the qualified status of such plan under applicable Law or (ii) materially increase accelerate the payment, funding or vesting of any compensation or benefits of any director, officer officer, employee, advisor, consultant or independent contractor of the Key Company or any Subsidiary of the Company under any Company Employee other than as required by Law Plan, or existing contractual arrangement (iii) except in the Ordinary Course of Business and subject to the limitations set forth in Section 7.2(f) above, increase the benefits of any director, officer, employee, advisor, consultant or independent contractor of the Company or of any Subsidiary of the Company (other than any bonus or similar payments amounts paid by an Acquired Company at any time prior to the payment of which would be reflected in the determination of Closing Cash or Third Party ExpensesClosing);
(rt) grant or pay, or enter into or amend any Contract providing for the granting or payment of any severance, change of control, retention or termination pay or benefits to any Person (other than (i) payments or benefits Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. provided pursuant to preexisting plans, policies or Contracts that have been disclosed made available to Parent Buyer and (ii) transaction bonuses or other amounts paid to Employees in connection with the Disclosure ScheduleTransactions that will constitute Third Party Expenses);
(su) (i) commence a lawsuit Legal Proceeding other than (A) for the routine collection of bills, (B) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business (provided that the it notifies Parent promptly following consults with Buyer prior to the filing of such a suit) or (C) for a breach (or alleged breach) of this Agreement or (ii) settle or agree to settle any pending or threatened lawsuit lawsuit, Legal Proceeding or other disputedispute other than any settlement that (A) does not impose any Liability on an Acquired Company except for the payment of monetary damages in an amount not in excess of $250,000 at any time prior to the Closing, (B) is without any admission of wrongdoing and (C) does not impose any equitable remedies or similar relief;
(tv) acquire or agree to acquire by merging or consolidating with, or by purchasing all or substantially all a substantial portion of the assets 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 that are material, individually or in the aggregate, to its business, or enter into any Contract with respect to a joint venture, strategic alliance or partnership, in each case other than acquisitions of inventory or equipment in the Ordinary Course of Business;
(uw) (i) make, change or revoke any income or other material Tax election, (ii) except as required by applicable Law, adopt (other than in the Ordinary Course of Business) or change any material Tax accounting method or period, (iii) file any federal, state, local or non-U.S. income Tax Return or other amended material Tax Return, file any amended Tax Return, (iv) enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of applicable state, local or non-U.S. Law)) with a Taxing Authority relating to any material amount of Tax, (v) participate in any voluntary disclosure application or agreement or similar process, (vi) apply for any Tax ruling, (vii) settle or compromise any material Tax claim or assessment, (viii) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment (except as the result of an extension of the filing date of any Tax Return obtained in the Ordinary Course of Business), (ix) enter into any Tax allocation Contractagreement, Tax sharing Contract, agreement or Tax indemnity Contract agreement, or (x) assume or agree to indemnify any material liability for Taxes of another Person (other than another Acquired Company) other than pursuant to commercial agreements entered into in the Ordinary Course of Business the primary purpose of which is unrelated to Tax;
(x) change in any material respect any of the foregoing Contracts that is a Commercial Tax Agreement), or surrender any right to claim a material Tax refund;
(v) change accounting methods or practices (including any change in depreciation or amortization policies) or revalue any of its assets (including writing down the value of inventory or writing off notes or accounts receivable otherwise than used in the Ordinary Course preparation of Business)the Audited Financial Statements, except in each case as required by changes in GAAP or any applicable Law;
(wy) enter into any agreement for the purchase, sale or lease of any real property;
(xz) place or allow the creation of any Lien (other than a Permitted Lien) on any of its material properties, except for Liens (i) under any Indebtedness that will be paid off at or prior to the Closing or, pursuant to the Payoff Letter, where the applicable Indebtedness is paid off by Buyer in accordance with Section 2.2(a)(iv) (and the related Liens released at or prior to the Closing or, pursuant to the Payoff Letter, where the applicable Indebtedness is paid off by Buyer in accordance with Section 2.2(a)(iv)) and (ii) with respect to which the Company has provided prior written notice to Buyer; andor
(y) materially change the manner in which it provides warranties, discounts or credits to customers;
(zaa) take or agree in writing or otherwise to take, any of the actions described in clauses (a) through (yaa). The foregoing Nothing in this Section 7.2 is intended to or shall be limited cause Buyer to the extent it would cause Parent to directly or indirectly control the Company or any of its Subsidiaries in violation of the HSR Act or other antitrust LawAct.
Appears in 1 contract
Samples: Merger Agreement (Compass Group Diversified Holdings LLC)
Restrictions on Conduct of the Business. Without limiting the generality or effect of the provisions of Section 5.1 and subject to applicable Law6.1, except (i) as expressly set forth on Section 5.2 6.2 of the Disclosure Schedule, (ii) as required by applicable Law, (iii) as expressly contemplated by the terms hereof or (iv) as consented to in advance in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company shall not not, and shall cause or permit any each Subsidiary of the following (except to the extent expressly provided otherwise herein or as consented to in advance in writing by Parent) (such consent, Company not to be unreasonably delayed, conditioned or withheld in the case of clauses (c), (d), (e), (k), (l), (p), (s) or (w))):to:
(a) amend its Charter Documents or equivalent organizational or governing documentsOrganizational Documents of its Subsidiaries;
(b) merge or consolidate itself with any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;
(c) declare or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any of its Equity Interests, or split, combine or reclassify any of its Equity Interests or issue or authorize the issuance of any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity Interests, or repurchase or otherwise acquire, directly or indirectly, any of its Equity Interests except for purchases from former employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service and issuances in connection with the exercise of any Company Options or Company Warrants that are outstanding as of the Agreement DateDate or upon conversion of any shares of Company Preferred Stock;
(d) (i) enter into, amend, renew into or amend or modify any (A) Material Contract or (B) any Contract that would (if entered into, amended, renewed or modified prior to the Agreement Date) constitute a Material Contract other than in the Ordinary Course of Business, (B) Material Contract other than in the Ordinary Course of Business or (B) Contract requiring a novation or consent in connection with the Merger or the other transactions contemplated by this AgreementContract, (ii) violate, terminate (other than non-renewals occurring in the Ordinary Course of Business), or materially amend, waive any of the terms of any of its Material ContractContracts, or (iii) enter into, materially amend amend, modify or terminate (other than non-renewals occurring in the Ordinary Course of Business) any ContractContract or waive or release any rights or claims thereunder, which if so entered into, amended modified, amended, terminated, waived or terminated released would be reasonably likely to (Ax) result in a Materially Adverse Effect to adversely affect the Company or any of its Subsidiaries (or, following consummation of the Merger, Parent or any of its Affiliates)) in any material respect, (By) materially impair the ability of the Company or the Stockholder Representative to perform their respective obligations under this Agreement agreement or (Cz) prevent or materially delay or impair the consummation of the Merger and the other transactions contemplated hereby;
(e) issue, deliver, grant or sell or authorize or propose the issuance, delivery, grant or sale of, or purchase or propose the purchase of, any Company Voting Debt Debt, any Equity Interests or any Equity Interestsother indebtedness or other security granting its holder the right to vote on any matters on which any Company Security Holder may vote (or that is convertible into, or exchangeable for, securities having such right), or enter into or authorize or propose to enter into any Contracts of any character obligating it to issue any Equity Interests, other than: (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options that are outstanding as of the Agreement Date, (ii) the issuance of shares of Company Capital Common Stock pursuant to the exercise of the Company Warrants and Warrant or upon conversion of shares of Company Preferred Stock, (iii) the repurchase of any shares of Company Capital Stock from former employees, non-employee directors and consultants in accordance with Contracts providing for the repurchase of shares in connection with any termination of service; Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material service and (iiiv) would promises to grant Company RSUs to prospective Company Service Providers in the Ordinary Course of Business provided any such Company RSUs shall not be competitively harmful if publicly disclosed.subject to acceleration under any circumstance (other than discretionary vesting acceleration provided for in the Company Equity Plan that shall not be exercised prior to the Effective Time) and (v) the grant of Company RSUs in accordance with Section 6.18 and to any Company Service Provider who is an Agreement Date Committed Equity Individual or who (A) received a promise in accordance with Section 6.2(e)(iv) and (B) commences employment and/or service prior to the Closing Date (such persons, a “Post-Signing Committed Equity Individual”);
(f) other than in the Ordinary Couse of Busines (i) hire, or offer to hire, any additional officers or other employees, or engage any consultants or independent contractors with annualized Company Service Providers earning annual base compensation at or above in excess of $150,000, 250,000 (ii) terminate the employment or engagement of any current Company Service Provider earning annual base compensation in excess of $250,000 (without causewhich, for purposes of clarity, shall not include a voluntary termination by such Company Service Provider or a termination for cause by the Company or any Subsidiary), (iii) change increase or modify the title, compensation, office compensation of any Company Service Provider or position or materially otherwise alter the responsibilities or terms and conditions of employment of for any current employee of the Company or its Subsidiaries, other than in accordance with annualized compensation at or above $150,000, Section 6.2(f)(iii) of the Disclosure Schedule (iiiiv) enter into, amend amend, or extend the term of any employment or consulting agreement, bonus arrangement, severance agreement(X) Contract providing for severance, retention bonusbenefits, or incentive compensation or (Y) change of control agreement with, or Company Option held by, any officer, employee, consultant or independent contractorCompany Service Provider, (ivv) recognize or enter into any Contract or other agreement with a any labor organization or union or collective bargaining agreement (unless except as otherwise required by LawLaw and after advance notice to Parent) or (vvi) add any new members to the Board;
(g) make any loans or advances (other than routine expense advances to employees of the Company Service Providers consistent with past practice) to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money;
(h) except for non-exclusive licenses granted in connection with the provision of the Company Products (not including rights in any Company Source Code) and the Company services in the Ordinary Course of Business, transfer or transfer, sell, license to or from any Person any rights to any Intellectual Property Rights;
(i) except in connection with the provision of the Company Products in the Ordinary Course of Business, enter into any agreement with respect to the development of any Intellectual Property Rights or Technology, or Technology with a third party (excluding agreements with consultants and independent contractors pursuant to Personnel Agreements);
(j) transfer or provide a copy of any Company Source Code to any Person (including any Company Service Provider or commercial partner of the Company or any Subsidiary of the Company) (other than providing access to Company Source Code to current employees and consultants of the Company Service Providers actually involved in the development of the Company Products on a need to know basis in the Ordinary Course of Business and provided each such employee or consultant Company Service Provider has executed a Personnel Agreement);
(ik) abandon take any action regarding a patent, patent application or permit to lapse any material other Company Registered IP, other than filing continuations for existing patent applications or completing or renewing registrations of existing patents, domain names, trademarks or service marks in the Ordinary Course of Business;
(jl) enter into any distribution, license, reseller, OEM, joint venture, strategic alliance, partnership or any similar arrangement or agreement (other than non-exclusive arrangements or agreements entered in the Ordinary Course of Business);
(m) sell, lease, license or otherwise dispose of or encumber (other than Permitted Liens) any of its properties or assets, other than non-exclusive licenses of Company Products in the Ordinary Course of Business, or enter into any Contract with respect to the foregoing;
(kn) enter into any operating lease in excess of $50,000 200,000 or any leasing transaction of the type required to be capitalized in accordance with GAAPGAAP in excess of $100,000 individually and $500,000 in the aggregate, other than equipment leases entered into in the Ordinary Course of Business in de minimis amounts;
(lo) incur any indebtedness for borrowed money in excess of $1,000,000 or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others in excess of $100,000others;
(mp) (i) pay, discharge or satisfy any Liability to any Person who is an officer, director or stockholder of the Company or any Subsidiary of the Company, other than compensation due for services as an officer or director in the Ordinary Course of Business, (ii) defer payment of any accounts payable other than in the Ordinary Course of Business, Business or (iiiii) give any discount, accommodation or other concession other than in the Ordinary Course of Business, in order to accelerate with the goal of accelerating or induce inducing the collection of any receivable outside of the Ordinary Course of Businessreceivable;
(nq) make any capital expenditures, capital additions or capital improvements in excess of $50,000 individually or $125,000 in 110% of the aggregatecapex budget for the 2021 fiscal year;
(or) materially change the amount of, or terminate, any insurance coverage;
(ps) agree to or take any actions to cancel, release or waive any material claims or material rights held by the Company or any Subsidiary of the Company;
(qt) (i) adopt, establish, enter into, terminate, discontinue or materially amend any Company Employee Plan, except in each case as required under ERISA, applicable Law or pursuant to the terms of any Company Employee Plan or as necessary to maintain the qualified status of such plan under applicable Law Law; provided the Company may enter into or terminate a Standard Offer Letter with any new hire permitted under Section 6.2(f)(i) or terminate any Standard Offer Letter permitted under Section 6.2(f)(ii), (ii) materially increase accelerate the payment, funding or vesting of any compensation or benefits of any directorcurrent or former Company Service Provider of the Company or any of its Subsidiaries, officer (iii) pay any bonus or other incentive compensation to any current or former Company Service Provider of the Key Employee Company or any of its Subsidiaries, or (iv) increase the benefits of any current or former Company Service Providers of the Company or any of its Subsidiaries (other than than, with respect to clauses (ii), (iii) and (iv), pursuant to preexisting plans, policies or Contracts that have been disclosed to Parent and are explicitly set forth on Section 3.20(a) of the Disclosure Schedule);
(u) except as required by Law or existing contractual arrangement and other than any bonus or similar payments the payment of which would be reflected in the determination of Closing Cash or Third Party Expenses;
(r) Law, grant or pay, or enter into any Contract providing for the granting or payment of pay any severance, change of control, retention or termination pay or benefits to any Person (other than payments or benefits Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. provided pursuant to preexisting plans, policies or Contracts that have been disclosed to Parent in and are explicitly set forth on Section 3.20(a) of the Disclosure Schedule);
(sv) (i) commence a lawsuit Legal Proceeding other than (A) for the routine collection of bills, (B) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business (provided that the it notifies Company consults with Parent promptly following prior to the filing of such a suit) or (C) for a breach or threatened breach of this Agreement or (ii) settle or agree to settle any pending or threatened lawsuit or other disputeLegal Proceeding;
(tw) acquire or agree to acquire by merging or consolidating with, or by purchasing all or substantially all a substantial portion of the assets 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 that are material, individually or in the aggregate, to its business, or enter into any Contract with respect to a joint venture, strategic alliance or partnership, in each case other than acquisitions of inventory or equipment in the Ordinary Course of Business;
(ux) make, change or revoke any income or other material Tax election, adopt (other than in the Ordinary Course of Business) or change any material Tax accounting method or period, file any federal, state, local or non-U.S. income Tax Return or any other material Tax ReturnReturn other than in compliance with Section 5.2(a)(i), file any amended Tax Return, enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of applicable state, local or non-U.S. Law), ) or voluntary disclosure application or agreement or similar process, apply for any Tax ruling, settle or compromise any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, enter into any Tax tax allocation Contractagreement, Tax tax sharing Contract, Tax agreement or tax indemnity Contract agreement (other than any of the foregoing Contracts that is a Commercial Tax Agreement), or assume or agree to indemnify any liability for Taxes of another Person or surrender any right to claim a material Tax refund;, avail itself of any relief pursuant to Pandemic Response Laws that could reasonably be expected to impact the Tax payment and/or reporting obligations of the Company or any of its Subsidiaries after the Closing Date, or take any other similar action outside of the ordinary course of business relating to the filing of any Tax Return or the payment of any Tax if such similar action would have the effect of increasing the Tax liability the Company or any of its Subsidiaries for any Tax period ending after the Closing Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date.
(vy) change accounting methods or practices (including any change in depreciation or amortization policies) or revalue any of its assets (including writing down the value of inventory or writing off notes or accounts receivable otherwise than in the Ordinary Course of Business), except in each case as required by changes in GAAP or Lawas concurred with its independent accountants and after notice to Parent;
(wz) enter into any agreement for the purchase, sale or lease of any real property;
(xaa) place or allow enter into any Contract that requires the creation procurement of any Lien (other than consent, waiver or novation or provide for any change in the obligations of any party thereto in connection with, or terminate as a Permitted Lien) on any of its properties; and
(y) materially change the manner in which it provides warranties, discounts or credits to customers;
(z) take or agree in writing or otherwise to take, any result of the actions described in clauses (a) through (y). The foregoing shall be limited to consummation of, the extent it would cause Parent to control the Company in violation of the HSR Act or other antitrust Law.Merger;
Appears in 1 contract
Samples: Merger Agreement (Twilio Inc)
Restrictions on Conduct of the Business. Without limiting the generality or effect of the provisions of Section 5.1 6.1 and subject to applicable Law, except as (i) expressly set forth on Section 5.2 Schedule 6.2, (ii) expressly contemplated by the terms hereof or (iii) consented to by Parent in response to an email request for such consent that is addressed to the Parent representatives set forth in Schedule 6.2(I) (the “Parent Representatives”), which consent shall (A) not be unreasonably withheld, conditioned or delayed and (B) shall be granted or withheld by the Parent Representatives within two (2) Business Days of receiving such email request; provided, that such consent shall be deemed to have been provided in the Disclosure Scheduleevent no Parent Representative responds within such two (2) Business Days, during the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective TimePre-Closing Period, the Company shall not not, and shall cause or permit any each Subsidiary of the following (except to the extent expressly provided otherwise herein or as consented to in advance in writing by Parent) (such consent, Company not to be unreasonably delayed, conditioned or withheld in the case of clauses (c), (d), (e), (k), (l), (p), (s) or (w))):to:
(a) amend its Charter Documents or equivalent organizational or governing documents;
(b) merge or consolidate itself with any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;
(c) declare or pay any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any of its Equity Interests, or split, combine or reclassify any of its Equity Interests or issue or authorize the issuance of any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity Interests, or repurchase or otherwise acquire, directly or indirectly, any of its Equity Interests except for purchases from former employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service and issuances in connection with the exercise of any Company Options that are outstanding as or Company Warrants or upon conversion of the Agreement Dateany shares of Company Preferred Stock;
(d) (i) enter into, amend, renew or modify any (A) Material Contract (except as set forth on Schedule 6.2(a) or renewals of Contracts with suppliers, vendors or customers entered into in the Ordinary Course of Business), (B) any Contract that would (if entered into, amended, renewed or modified prior to the Agreement Date) constitute a Material Contract (other than the entry into renewals of Contracts with suppliers, vendors or customers entered into in the Ordinary Course of Business), (B) Material Contract other than in the Ordinary Course of Business or (BC) Contract requiring a novation or consent in connection with the Merger or the other transactions contemplated by this Agreement, (ii) violate, terminate (other than non-renewals occurring in the Ordinary Course of Business), or materially amend, waive any of the terms of any of its Material ContractContracts, or (iii) enter into, materially amend amend, renew, modify or terminate (other than non-renewals occurring in the Ordinary Course of Business) any ContractContract or waive, release or assign any rights or claims thereunder, which if so entered into, amended modified, amended, terminated, waived, released or terminated assigned would be reasonably likely to (Ax) result in a Materially Adverse Effect to adversely affect the Company or any of its Subsidiaries (or, following consummation of the Merger, Parent or any of its Affiliates)) in any material respect, (By) materially impair the ability of the Company or the Stockholder Representative to perform their respective obligations under this Agreement or (Cz) prevent or materially delay or impair the consummation of the Merger and the other transactions contemplated hereby;
(e) issue, deliver, grant or sell or authorize or propose the issuance, delivery, grant or sale of, or purchase or propose the purchase of, any Company Voting Debt Debt, any Equity Interests or any Equity Interestsother indebtedness or other security granting its holder the right to vote on any matters on which any Company Security Holder may vote (or that is convertible into, or exchangeable for, securities having such right), or enter into or authorize or propose to enter into any Contracts of any character obligating it to issue any Equity Interests, other than: (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options that are outstanding as of the Agreement Date, (ii) the issuance of shares of Company Capital Common Stock pursuant to the exercise of the Company Warrants Warrant or upon conversion of shares of Company Preferred Stock, and (iii) the repurchase of any shares of Company Capital Stock from former employees, non-employee directors and consultants in accordance with Contracts providing for the repurchase of shares in connection with any termination of service; Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed.;
(f) other than except as set forth in the Ordinary Couse of Busines Schedule 6.2(f): (i) hire, or offer to hire, any additional officers or other employees, or engage any consultants or independent contractors with annualized compensation employees at the director level or above or with an annual compensation of $150,000200,000 or more, (ii) engage any advisor, consultant or independent contractor with annual compensation in excess of $50,000, (iii) terminate the employment or engagement of any director, officer, employee, advisor, consultant or independent contractor of the Company or any Subsidiary of the Company, in each case whose annual compensation exceeds $200,000 (without causewhich, for purposes of clarity, shall not include a voluntary termination by any such Person or a termination by the Company or any Subsidiary for cause or for failing to satisfy performance expectations after being placed on a performance improvement plan, (iv) change the title, office, position, compensation, office or position or materially alter the responsibilities or terms and conditions of employment of any officer or director or more senior employee of the Company with annualized compensation at or above $150,000any Subsidiary of the Company, (iiiv) enter into, amend or extend the term of any employment (X) employment, consulting, independent contractor, advisor, or consulting service provider agreement (in each case, except as permitted under clause (i)-(ii) of this Section 6.2(f)), or any bonus or incentive compensation arrangement, commission agreement, bonus arrangement, severance agreement, agreement or retention bonus, in each case, with any Person whose annual compensation from the Company or any Subsidiary exceeds $50,000 (excluding equity compensation), or (Y) change of control agreement with, or Company Option held by, any officer, employee, advisor, consultant or independent contractor, (ivvi) recognize or enter into any Contract or other agreement with a any labor organization or union or collective bargaining agreement (unless except as otherwise required by LawLaw and after advance notice to Parent) or (vvii) add any new members to the BoardBoard (all new offers or hires permitted pursuant to this Section 6.2(f), a “Permitted Hire”);
(g) make any loans or advances (other than routine expense advances to employees of the Company or any Subsidiary of the Company consistent with past practice) to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money;
(h) except for non-exclusive licenses granted in connection with the provision of the Company Products (not including rights in any Company Source Code other than Company Source Code that comprises the Company Hybrid Product or distributed pursuant to an Open Source Licenses in substantially the same manner as distributed by the Company as of the date of the Agreement) and the Company services in the Ordinary Course of Business, transfer or transfer, sell, license to or from any Person any rights to any Intellectual Property Rights;
(i) except in connection with the provision of the Company Products and Company services in the Ordinary Course of Business, enter into any agreement with respect to the development of any Intellectual Property Rights or Technology, or Technology with a third party (excluding agreements with consultants and independent contractors pursuant to Personnel Agreements);
(j) transfer or provide a copy of any Company Source Code to any Person (including any current or former employee or consultant of the Company or any Subsidiary of the Company or any contractor or commercial partner of the Company or any Subsidiary of the Company) (other than as done by the Company consistent with past practice, with respect to the Company Hybrid Product or providing access to Company Source Code to current employees and consultants of the Company or any Subsidiary of the Company actually involved in the development of the Company Products on a need to know basis in the Ordinary Course of Business and provided each such employee or consultant has executed a Personnel Agreement) or materially amend or replace any Company Privacy Policy;
(k) take any action regarding a patent, patent application or other registered Intellectual Property Right, other than filing continuations for existing patent applications or completing or renewing registrations of existing Company Registered IP in the Ordinary Course of Business;
(l) enter into any license, distribution, reseller, OEM, joint venture or joint marketing or any similar arrangement or agreement (other than nonexclusive arrangements entered in the Ordinary Course of Business);
(i) abandon or permit to lapse any material Company Registered IP;
(jm) sell, lease, license or otherwise dispose of or encumber (other than Permitted Liens) any of its material properties or assets, other than non-exclusive licenses of Company Products in the Ordinary Course of Business, or enter into any Contract with respect to the foregoing;
(kn) enter into any operating lease in excess of $50,000 or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(lo) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others in excess of $100,000others;
(mp) (i) pay, discharge or satisfy any Liability to any Person who is an officer, director or stockholder of the Company or any Subsidiary of the Company, other than compensation due for services as an officer or director or the reimbursement of business expenses in the Ordinary Course of Business, (ii) defer payment of any accounts payable other than in the Ordinary Course of Business, or (iiiii) give any discount, accommodation or other concession other than in the Ordinary Course of Business, in order to accelerate or induce the collection of any receivable outside of the Ordinary Course of Businessreceivable;
(nq) make any capital expenditures, capital additions or capital improvements in excess of $50,000 200,000 individually or $125,000 500,000 in the aggregate;
(or) materially change the amount of, or terminate, any insurance coverage;
(ps) cancel, release or waive any material claims or material rights held by the Company or any Subsidiary of the Company;
(qt) (i) adopt, establish, enter into, terminate, discontinue or materially amend any Company Employee Plan, except in each case as required under ERISA, applicable Law or pursuant to the terms of any Company Employee Plan or as necessary to maintain the qualified status of such plan under applicable Law or Law, (ii) materially accelerate the payment, funding or vesting of any compensation or benefits of any employee, consultant, advisor, independent contractor or director of the Company or any Subsidiary of the Company, (iii) pay any bonus or other incentive compensation to any employee, consultant, advisor, independent contractor or director, or (iv) increase the compensation or benefits of any directoremployee, officer consultant, advisor, independent contractor or the Key Employee director (other than than, with respect to clauses (iii) and (iv), as required by Law the terms of preexisting plans, policies or existing contractual arrangement Contracts that have been disclosed to Parent and other than any bonus or similar payments the payment of which would be reflected in the determination of Closing Cash or Third Party Expensesare set forth on Schedule 6.2(t));
(ru) except as required by Law, grant or pay, or enter into any Contract providing for the granting or payment of any severance, change of control, retention or termination pay or benefits to any Person (other than existing immigration sponsorship costs incurred in the Ordinary Course of Business and any payments or benefits Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. provided pursuant to preexisting plans, policies or Contracts that have been disclosed to Parent and are set forth on Schedule 6.2(u) (whether pursuant to Contract or applicable Law)) in excess of $25,000 individually or $75,000 in the Disclosure Schedule)aggregate;
(s) (i) commence a lawsuit other than (A) for the routine collection of bills, (B) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business (provided that the it notifies consults with Parent promptly following prior to the filing of such a suit) or (C) for a breach or threatened breach of this Agreement or (ii) settle or agree to settle any pending or threatened lawsuit or other written dispute;
(tw) acquire or agree to acquire by merging or consolidating with, or by purchasing all or substantially all a substantial portion of the assets 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 that are material, individually or in the aggregate, to its business, or enter into any Contract with respect to a joint venture, strategic alliance or partnership, in each case other than acquisitions of inventory or equipment in the Ordinary Course of Business;
(ux) make, change or revoke any income or other material Tax election, adopt (other than in the Ordinary Course of Business) or change any material Tax accounting method or period, file any federal, state, local or non-U.S. income Tax Return or any other material Tax ReturnReturn without complying with the requirements of Section 5.2(a)(i), file any amended Tax Return, enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of applicable state, local or non-U.S. Law), voluntary disclosure application or agreement or similar process, apply for any Tax ruling, settle or compromise any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, enter into any Tax tax allocation Contractagreement, Tax tax sharing Contract, Tax agreement or tax indemnity Contract agreement (other than excluding for this purpose any of the foregoing Contracts that is a ancillary provisions in any Ordinary Commercial Tax Agreement), assume or agree to indemnify any liability for Taxes of another Person (excluding for this purpose any ancillary provisions in any Ordinary Commercial Agreement), voluntarily surrender any right to claim a material Tax refund, avail itself of relief pursuant to Pandemic Response Laws (except for Section 2302 of the CARES Act) that could reasonably be expected to impact the Tax payment and/or reporting obligations of the Company or any of its Subsidiaries after the Closing Date, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax if such similar action would have the effect of increasing the Tax liability the Company or any of its Subsidiaries for any Tax period ending after the Closing Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date;
(vy) change accounting methods or practices (including any change in depreciation or amortization policies) or revalue any of its assets (including writing down the value of inventory or writing off notes or accounts receivable otherwise than in the Ordinary Course of Business), except in each case as required by changes in GAAP or Lawas concurred with its independent accountants and after notice to Parent;
(wz) enter into any agreement for the purchase, sale or lease of any real property;
(xaa) place or allow the creation of any Lien (other than a Permitted Lien) on any of its properties; and;
(ybb) materially change the manner in which it provides warranties, discounts or credits to customers;; or
(zcc) take or agree in writing or otherwise to take, any of the actions described in clauses (a) through (ybb). The foregoing Nothing in this Section 6.2 shall be limited to the extent it would cause Parent to control the Company in violation of the HSR Act or other antitrust Law.
Appears in 1 contract
