Specific Activities. During the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section 6.2 of the Company Disclosure Schedule, (iii) as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to: (a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries); (b) (i) declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (iv) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (c) issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of Company Ordinary Shares upon exercise of Company Warrant awards outstanding on the date of this Agreement, conversion of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company Warrant, Company Preferred Shares or Company Options;
Appears in 2 contracts
Sources: Merger Agreement (Tti Team Telecom International LTD), Merger Agreement (Tti Team Telecom International LTD)
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) in connection with any activity permitted to be taken by the Company pursuant to Section 6.5(a), as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries);
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (ivvi) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) Except for transactions among the Company and its wholly-owned Subsidiaries or the Company’s wholly-owned Subsidiaries, issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of restricted shares pursuant to a Company Ordinary Shares upon exercise of Employee Plan which has been properly approved by the Company Warrant awards outstanding on prior to the date of this Agreement, conversion Agreement or the issuance of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Share Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantShare Options;
(d) acquire or agree to acquire any material assets (including securities) or merge or consolidate, with any Person or engage in any similar transaction or make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts reflected in the Company’s budget for 2007 provided to Purchaser or permitted by Section 6.2(i) below;
(e) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course, or adopt a plan of merger, consolidation, restructuring or other reorganization;
(f) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any “keep-well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business pursuant to credit agreements or facilities in existence on the date hereof;
(g) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(h) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(i) make or agree to make any capital expenditures in excess of the amount contemplated by the Company’s 2007 budget other than capital expenditures that do not exceed $1,000,000 in the aggregate;
(j) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or to propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involves non-monetary relief that would materially restrict the operations of the Company or (ii) requires the payment of amounts after the Closing in excess of $1,000,000 in the aggregate;
(k) (i) modify or amend in any material respect any credit agreement or facility or (ii) modify or amend in any material respect or terminate any other material Contract outside of the ordinary course of business;
(l) except (1) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (2) as otherwise required by Law, or (3) as provided pursuant to existing Employment Agreement or other Contracts in effect on the date hereof, (i) increase the compensation or benefits of any director, officer or employee, except for, in the cases on non-officer employees, increases in the ordinary course that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year), (ii) adopt or amend in any material respect any Company OptionsEmployee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (iii) enter into or amend or modify any employment, consulting, severance, termination or similar agreement with any director, officer or employee, (iv) accelerate the payment of compensation or benefits to any director, officer or employee, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Plan or compensation agreement or arrangements, or (vi) take any action that could give rise to severance benefits payable to any officer, director, or employee of the Company or any of its Subsidiaries as a result of the consummation of the Merger or the other Transactions;
(m) make any material change in accounting methods, principles or practices, except (i) as required by GAAP, Regulation S-X of the Exchange Act or as required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) as required by change in applicable Legal Requirements;
(n) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(o) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with or to the sale or distribution of any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company: (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights which are material to the Company or any of its Subsidiaries; or (ii) enter into any agreement limiting in any material respect the right of the Surviving Corporation or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(p) enter into any material Contract or series of related Contracts that (i) are not in the ordinary course of business, and (ii) pursuant to which the Company or any Subsidiary undertakes to assume any liability or undertaking in excess of $1,000,000 in the aggregate (except as expressly permitted under other provisions of this Agreement); or
(q) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Eci Telecom LTD/)
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) Schedule and as required by applicable Legal Requirements, including GAAPLaw, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or provided that the Purchaser shall be deemed to have consented if the Purchaser does not object within three (v3) as required Business Days in order Los Angeles, California, after a request for such consent is delivered by the Company to comply with the individuals set forth in Section 6.1 above6.2 of the Purchaser Disclosure Schedule), the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries)Documents;
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stockshare capital, (ii) adopt a plan of complete or partial liquidation or reorganization, or a resolution providing for or authorizing such liquidationliquidation or reorganization, (iii) split, combine or reclassify any of its capital stock shares or any other security or interest therein, or (iv) repurchase, redeem or otherwise acquire any shares of capital stockshares, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein therein, including any rights, warrants or options to purchase any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of capital stock other than the issuance of Company Ordinary Shares upon exercise of Company Warrant awards outstanding on the date of this Agreement, conversion of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantStock Options or upon conversion of the Company’s convertible notes;
(d) acquire or agree to acquire any material assets of (including securities), or merge or consolidate with, any Person or engage in any similar transaction;
(e) make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts expressly reflected in the Company’s budgets for 2007and 2008 provided to the Purchaser;
(f) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course of business consistent with past practice;
(g) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any “keep-well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business consistent with past practice pursuant to credit agreements or facilities in existence on the date hereof;
(h) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(i) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law or, solely with respect to accounting periods or methods, as required by GAAP) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(j) make or agree to make any capital expenditures in excess of the amount contemplated by the Company’s budgets for 2007 or 2008 provided to the Purchaser;
(k) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involve non-monetary relief that would materially restrict the operations of the Company, or (ii) requires the payment of amounts after the Closing in excess of $500,000 individually;
(l) (i) modify or amend in any material respect any credit agreement or facility, or (ii) modify or amend in any material respect or terminate any Company Contract or any other Contract that is material to the Company and its Subsidiaries, taken as a whole;
(m) terminate or otherwise discontinue the services without cause of the Company’s and its Subsidiaries current officers and key employees who are integral to the operation of their businesses as presently conducted;
(n) except (i) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (ii) as otherwise required by Law, (iii) as provided pursuant to existing Employment Agreements or in compensation committee directives in effect on the date hereof, or (iv) as set forth in Section 6.2 of the Company OptionsDisclosure Schedule, (A) increase the compensation or benefits of any director, officer or employee, except for, in the cases of non-officer employees, increases in the ordinary course of business that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year and changes relating to positions or title), (B) adopt or amend in any material respect any Company Employee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (C) amend or modify in any material respect any Employment Agreement or enter into any Employment Agreement with an Employee providing for compensation and benefits in excess of $200,000 per year;
(o) make any material change in accounting methods, principles or practices, except as required (i) by GAAP, Regulation S-X of the Exchange Act, any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) by change in applicable Law;
(p) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(q) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect, any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license, to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with, or to the sale or distribution of, any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights that are material to the Company or any of its Subsidiaries, or (ii) enter into any agreement limiting in any material respect the right of the Surviving Company or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(r) enter into any Company Contract or series of related Contracts outside the ordinary course of business (except as expressly permitted under other provisions of this Agreement); or
(s) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) in connection with any activity permitted to be taken by the Company pursuant to Section 6.5(a), as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries);
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company's wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (ivvi) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) Except for transactions among the Company and its wholly-owned Subsidiaries or the Company's wholly-owned Subsidiaries, issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of restricted shares pursuant to a Company Ordinary Shares upon exercise of Employee Plan which has been properly approved by the Company Warrant awards outstanding on prior to the date of this Agreement, conversion Agreement or the issuance of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Share Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantShare Options;
(d) acquire or agree to acquire any material assets (including securities) or merge or consolidate, with any Person or engage in any similar transaction or make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts reflected in the Company's budget for 2007 provided to Purchaser or permitted by Section 6.2(i) below;
(e) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course, or adopt a plan of merger, consolidation, restructuring or other reorganization;
(f) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any "keep-well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business pursuant to credit agreements or facilities in existence on the date hereof;
(g) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(h) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(i) make or agree to make any capital expenditures in excess of the amount contemplated by the Company's 2007 budget other than capital expenditures that do not exceed $1,000,000 in the aggregate;
(j) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or to propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involves non-monetary relief that would materially restrict the operations of the Company or (ii) requires the payment of amounts after the Closing in excess of $1,000,000 in the aggregate;
(i) modify or amend in any material respect any credit agreement or facility or (ii) modify or amend in any material respect or terminate any other material Contract outside of the ordinary course of business;
(l) except (1) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (2) as otherwise required by Law, or (3) as provided pursuant to existing Employment Agreement or other Contracts in effect on the date hereof, (i) increase the compensation or benefits of any director, officer or employee, except for, in the cases on non-officer employees, increases in the ordinary course that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year), (ii) adopt or amend in any material respect any Company OptionsEmployee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (iii) enter into or amend or modify any employment, consulting, severance, termination or similar agreement with any director, officer or employee, (iv) accelerate the payment of compensation or benefits to any director, officer or employee, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Plan or compensation agreement or arrangements, or (vi) take any action that could give rise to severance benefits payable to any officer, director, or employee of the Company or any of its Subsidiaries as a result of the consummation of the Merger or the other Transactions;
(m) make any material change in accounting methods, principles or practices, except (i) as required by GAAP, Regulation S-X of the Exchange Act or as required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) as required by change in applicable Legal Requirements;
(n) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(o) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with or to the sale or distribution of any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company: (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights which are material to the Company or any of its Subsidiaries; or (ii) enter into any agreement limiting in any material respect the right of the Surviving Corporation or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(p) enter into any material Contract or series of related Contracts that (i) are not in the ordinary course of business, and (ii) pursuant to which the Company or any Subsidiary undertakes to assume any liability or undertaking in excess of $1,000,000 in the aggregate (except as expressly permitted under other provisions of this Agreement); or
(q) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Eci Telecom LTD/)
Specific Activities. During Without limiting the generality of Section 4.1, during the period from the date of this Agreement until to the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII7, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section 6.2 on Section 4.2 of the Company Disclosure ScheduleLetter, (iii) as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by the Parent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) causeWaive any stock repurchase rights, accelerate, (other than in accordance with written agreements outstanding on the date hereof and disclosed on Section 2.3 or 2.11(b) of the Company Disclosure Letter), amend or change the period of exercisability of any Company Share Option or Company SAR, or reprice any Company Share Option or authorize cash payments in exchange for any Company Share Option;
(i) Grant any severance or termination pay to any officer, employee or consultant, except pursuant to written Employment Agreements existing, custom or written policies existing, on the date hereof and included in Section 2.11(b)(i) of the Company Disclosure Letter, or as required by applicable Legal Requirements; or (ii) adopt any new severance plan, agreement, custom, policy or arrangement or amend or modify or alter in any manner any severance plan, agreement, custom, policy or arrangement existing on the date hereof, or (iii) grant any equity-based compensation, whether payable in cash or shares, including any Company Share Option or Company SAR, except (A) pursuant to written Employment Agreements existing, or written policies existing, on the date hereof and included in Section 2.11(b)(ii) of the Company Disclosure Letter, (B) the issuance of Company Shares upon exercise of vested Company Share Options or Company SARs and (C) as permitted pursuant to Section 4.2(f);
(c) Transfer or license to any Person or otherwise extend, amend or modify in any material respect any rights of such other Person or entity to Company Intellectual Property, or enter into any agreements or make other commitments or arrangements to grant, transfer or license to any Person future patent right, in each case other than non-exclusive licenses the granting of which are necessary in connection with or to the sale or distribution of any product offering of the Company or any of its Subsidiaries being marketed or sold by the Company or any of its Subsidiaries and other agreements with customers, in each case in the ordinary course of business consistent with past practices; provided that in no event shall the Company or any Subsidiary of the Company: (i) license on an exclusive basis or sell any Company Intellectual Property; or (ii) enter into any agreement limiting the right of the Surviving Company or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, shares of the Company, equity securities or property) in respect of any shares of capital stock of the Company or split, combine or reclassify any shares of capital stock of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any shares of capital stock of the Company;
(e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares, except in connection with withholding to satisfy tax obligations with respect to options, acquisitions in connection with the forfeiture of equity awards or acquisitions in connection with the net exercise of options;
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber (or propose any of the foregoing with respect to) any shares of capital stock or any securities convertible into or exercisable or exchangeable for shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of such capital stock or any securities convertible into shares of such capital stock, or enter into other Contracts of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and sale of: (i) Company Shares pursuant to the exercise of Company Share Options or Company SARs and other agreements set forth in Section 2.3 of the Company Disclosure Letter, in each case outstanding as of the date of this Agreement; (ii) Company Shares issuable upon exercise of the Convertible Notes; and (iii) grants of Company Share Options to employees and new hires, in each such case in the ordinary course of business consistent with past practice with an exercise price not greater than the closing price per Company Share on the date of grant, which Company Share Options shall not accelerate as a result of the occurrence of any of the Transactions (whether alone or upon the occurrence or nonoccurrence of any additional or subsequent events), subject to Section 5.10(e);
(g) Cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries);
(bh) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any business or any Person or division thereof, or otherwise acquire or agree to acquire all or substantially all of the assets of any of the foregoing, enter into any joint ventures, strategic partnerships or similar alliances or form or agree to form any Subsidiaries;
(i) (i) declare Other than through licensing permitted by clause (c) or sales of inventory in the ordinary course of business consistent with past practice, sell, lease, license, encumber, convey, assign, sublicense or otherwise dispose of or transfer any properties or assets or any interest therein, other than the sale, lease or disposition of property or assets with a purchase price not in excess of $5 million; or (ii) grant or otherwise create or consent to the creation of any material Lien affecting any owned or leased real property or any part thereof;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of ordinary course trade payables consistent with past practice; or (ii) make any loans, advances or capital contributions to any Person (other than the Company or any of its Subsidiaries), except loans or advances to employees made in the ordinary course of business consistent with past practice;
(i) Adopt or amend any Employment Agreement or Company Employee Plan, except as may be required by applicable Legal Requirements; or enter into any employment Contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will,” except as may be required by Legal Requirements, and who are not officers of the Company or any Subsidiary of the Company); (ii) commit or offer to or agree to pay or pay any dividends special bonus or special remuneration to any director or employee, except, in each case, as may be required by applicable Legal Requirements or by any existing employee benefit plan, policy, arrangement, program or Contract disclosed in Section 2.11(b) of the Company Disclosure Letter or as permitted in clause (iii)(y); (iii) (x)commit or offer to increase or increase the salaries or wage rates or benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by applicable Legal Requirements or by any existing employee benefit plan, policy, arrangement, program or Contract disclosed on Section 2.11(b) of the Company Disclosure Letter, or make (y) pay, grant or increase, or change any past customs or unwritten policies of the Company with respect to, benefits not required by Legal Requirements with respect to its employees, except that the Company may pay annual bonuses to employees for the Company’s 2006 fiscal year in accordance with the Company’s 2006 bonus plan attached to Section 4.2(k) of the Company’s Disclosure Letter if such bonuses are allocated in consultation with Parent and the Company may change severance pay as expressly permitted by Section 4.2(b); (iv) take any action to accelerate the vesting or payment, or fund or any other distributions way secure payment of compensation or benefits under any Company Employee Plans, to the extent not already provided in such plans disclosed on Section 2.11(b) of the Company Disclosure Letter; (v) change any actuarial or other assumptions used to calculate funding obligations with respect of to any Company Employee Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to any of its respective capital stockdirectors, officers or employees;
(l) (i) Pay, discharge, or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms in existence as of the date hereof; (ii) adopt waive the benefits of, or agree to modify in any material manner, terminate or release any Person from, any confidentiality, standstill or similar Contract to which the Company or any of its Subsidiaries is a plan party or of complete which the Company or partial liquidation any of its Subsidiaries is a beneficiary; or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify settle any of its capital stock litigation (whether or (iv) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options not commenced prior to acquire any such shares or other securities;
(c) issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of Company Ordinary Shares upon exercise of Company Warrant awards outstanding on the date of this Agreement) other than a settlement reimbursable from insurance or calling solely for a cash payment in an aggregate amount less than $500,000 and in any case including a full release of the Company and its Subsidiaries, conversion as applicable, or any settlement permitted by Section 5.3 or as previously reserved for in the most recent balance sheet of the Company Preferred Shares outstanding filed with or furnished to the SEC prior to the date hereof;
(m) Materially modify or amend in a manner adverse to the Company or its Subsidiaries or terminate any Company Contract, or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(n) Revalue any of its assets (including writing down the value of capitalized inventory or writing off notes or accounts receivable) or make any change in accounting methods, principles or practices, except (i) as required by GAAP, Regulation S-X of the Exchange Act or as required by any Governmental Entity or the Financial Accounting Standards Board (or similar organization), (ii) as required by change in applicable Legal Requirements, or (iii) in connection with the Restated Financials with respect to historical financial statements and historical accounting methods, principles or practices or arising out of investigations conducted in connection therewith;
(i) Hire any employee with an annual (base and incentive) compensation level in excess of $125,000; or (ii) increase the net number of employees of the Company and its Subsidiaries taken as a whole;
(p) Enter into any Contract or series of related Contracts that would be a Company Contract if it were in existence on the date hereof (except as expressly permitted under other provisions hereof or contemplated by Section 5.3 of this Agreementthe Company Disclosure Letter);
(q) Make any material Tax election inconsistent with past practice, agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes (which will bind the Company for a period following the Closing Date), or upon request, negotiate or agree to any Tax rulings, other than rulings requested to cause the exercise Merger to qualify as a tax free exchange under Section 104(h) of Company Options outstanding on the date of this Agreement and Ordinance or in accordance connection with the existing terms Israeli Income Tax Ruling;
(r) make any capital expenditures in excess of such Company Warrant, Company Preferred Shares $500,000 in any individual case or Company Options;$5,000,000 in the aggregate; or
(s) Commit or agree in writing or otherwise to take any of the actions described in Section 4.2(a) through (r).
Appears in 1 contract
Sources: Merger Agreement (Sandisk Corp)