restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the Merger.
(g) “Audited Company Balance Sheet” means the consolidated balance sheet (and the notes thereto) of the Company and its consolidated Subsidiaries as of January 31, 2021, set forth in the Company’s Annual Report on Form 10 K filed by the Company with the SEC for the fiscal year ended January 31, 2021.
(h) “Business Day” means each day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank of San Francisco is closed.
(i) “Business IP” means all (i) Intellectual Property used in, or held for use in, or necessary for the operation of the Company and its Subsidiaries’ respective businesses as currently conducted that, in each case, is material to the operation of the business of the Company and its Subsidiaries, taken as a whole, and (ii) Company Intellectual Property.
(j) “Bylaws” means the bylaws of the Company in effect as of the date of this Agreement.
(k) “CARES Act” means (i) the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and (ii) Division N – Additional Coronavirus Response and Relief of the Consolidated Appropriations Act, 2021 (H.R. 133), in each case, together with all rules and regulations and guidance issued by any Governmental Authority with respect thereto.
(l) “Capitalization Date” means 5:00 p.m. on July 22, 2021.
(m) “Capped Call Documentation” means the letter agreements related to call options on Company Common Stock relating to $500,000,000 aggregate principal amount of the Convertible Notes, each dated as of September 15, 2020, and the letter agreements related to call options on Company Common Stock relating to $75,000,000 aggregate principal amount of the Convertible Notes, each dated as of September 16, 2020, entered into by the Company with each of Wells Fargo Bank, National Association, Royal Bank of Canada, Citibank, N.A., Bank of America, N.A. and Barclays Bank PLC, in each case, as amended, restated, supplemented, or otherwise modified on or prior to the date hereof.
(n) “Capped Call Transactions” means the transactions contemplated by the Capped Call Documentation.
(o) “Certificate of Merger” means the certificate of merger, in customary form, relating to the Merger.
(p) “Charter” means the Amended and Restated Certificate of Incorporation of the Company in effect as of the date of this Agreement.
(q) “Chosen Courts” means the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have subject matter jurisdiction (but only in such event), the United States District Court for the District of Delaware or, if jurisdiction is not then available in the United States District Court for the District of Delaware (but only in such event), then any Delaware state court).
(r) “Code” means the Internal Revenue Code of 1986.
(s) “Company Benefit Plan” means any plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, bonus, stock option, stock purchase or other equity-based award (including but not limited to the Company Equity-Based Awards and the Company Options), performance award, incentive compensation, profit sharing, savings, retirement, disability, life insurance, health or medical benefits, employee assistance program, sick leave, vacation, deferred compensation, severance, termination pay, post-employment or retirement benefits, retention, stay bonus, change of control compensation, and other fringe, welfare or other employee benefit or remuneration of any kind, whether or not in writing, whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA which is sponsored, maintained or contributed to by the Company, any of its Subsidiaries or any ERISA Affiliate for the benefit of any Service Provider, or with respect to which the Company or any of its Subsidiaries or ERISA Affiliates has or could reasonably expect to have any liability or obligation, contingent or otherwise.