Actions by the Company. Except as expressly permitted by clauses (i) through (xiii) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, in all material respects carry on its business in the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: (i)(A) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends and other distributions by Subsidiaries), (B) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; (iii) amend its Charter or Bylaws; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; (v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its Subsidiaries or between any of such Subsidiaries; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than as required by law; (ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any severance or termination pay to, or A-23
Appears in 1 contract
Samples: Merger Agreement (Nova Corp \Ga\)
Actions by the Company. Except as expressly permitted by clauses (i) through i)through (xiii) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company Company, subject to Section 4.2 hereof, shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in in, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, the Company Company, subject to Section 4.2 hereof, shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (x) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders stockholders in their capacity as such (other except dividends in the amount of no more than dividends $0.14 per share may be declared and other distributions by Subsidiaries)paid consistent with past practices, (By) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; securities except such purchases or redemptions that are pursuant to existing agreements to which the Company is a party. Nothing herein shall preclude the Company from terminating any and all options pursuant to which the Company has the right to repurchase shares of the Company Common Stock;
(ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon as necessary to satisfy participant elections under the exercise of Company Options outstanding on the date of this Agreement in accordance with their current terms, (BCompany's 401(k) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary aspect of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; ESOP;
(iii) amend its Charter charter or Bylaws; by-laws;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those assets other than transactions that are in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, consistent with past practice and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; that are not material;
(v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than (A) transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; whole and (B) as may be required by any Governmental Entity;
(vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices practice and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries; ;
(vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; ;
(viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan Plan, including the ESOP (with respect to which consent shall not by unreasonably withheld by Parent), or employment or consulting agreement, other than as required by law; , provided, however, that the Company may enter into (x) a bonus agreement and consulting agreement with Robert J. Sullivan, ix xxxxxxxxxxxxx xxe form attached hereto as Exhibits B, respectively, and (y) an agreement with Barry T. Ross in subsxxxxxxxxx xxx form attached hereto as Exhibit C;
(ix) except as set forth in Schedule 4.1(b)(ixSection 4.1(b)(viii), increase the compensation payable or to become payable to its officers or employees, except for increases (including bonuses and incentive payments) in the ordinary course of business consistent with past practice in salaries or wages of officers or employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its SubsidiariesCompany, or grant any severance or termination pay to, or A-23enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that nothing herein shall prohibit the Company from making a discretionary contribution to the ESOP for the Company's fiscal year ending February 1, 1997, in an amount consistent with past practices of the Company and not to exceed 10% of eligible employee compensation;
(x) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance;
(xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by generally accepted accounting principles);
(xii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability; or
(xiii) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Proffitts Inc)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiii) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company Company, subject to Section 4.2 hereof, shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in in, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, the Company Company, subject to Section 4.2 hereof, shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders stockholders in their capacity as such (other than dividends and other distributions by Subsidiaries)such, (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cy) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; ;
(ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, (B) terms or the issuance of shares of Company Common Stock in connection with acquisitions permitted securities pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; Rights Plan;
(iii) amend its Charter charter or Bylaws; by-laws;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those assets other than transactions that are in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, consistent with past practice and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; that are not material;
(v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than (A) transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; whole and (B) as may be required by any Governmental Entity;
(vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices practice and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly- owned Subsidiaries; ;
(vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; ;
(viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than as required by law; ;
(ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any severance or termination pay to, or A-23enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(x) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance;
(xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by generally accepted accounting principles);
(xii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability; or
(xiii) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Proffitts Inc)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiii) of this Section 4.1(b), during During the period from the date of this Agreement through the Effective Time, except as otherwise expressly required by this Agreement or as set forth in the Company Letter, the Company shall, and shall cause each of its Subsidiaries to, in all material respects carry on its business in, and not enter into any material transaction other than in accordance with, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organizationsorganization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it it, all to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this AgreementAgreement or as set forth in the 25 Company Letter, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (A) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than regular quarterly dividends of not more than $.85 per Company $3.40 Preferred Share, of not more than $1.00 per Company $4.00 Preferred Share and other distributions of not more than $.10 per Company Common Share (it being the express understanding of Parent and the Company that the shareholders of the Company shall be entitled to either a dividend on Company Common Shares or shares of Parent Common Stock, but not both, for the calendar quarter in which the Closing shall occur, and the Board of Directors of the Company shall not declare any dividend or fix any record date therefor which would have such effect) and dividends paid by SubsidiariesSubsidiaries of the Company in the ordinary course of business and consistent with past practice), ; (B) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock stock; or (C) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of its capital stock or those of the Company any Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; ;
(ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire acquire, any such shares, voting securities, equity equivalent or convertible securities, securities (other than (A) the issuance of shares of Company Common Stock Shares and Company Rights upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; ;
(iii) amend its Charter charter or Bylaws; organization documents or by-laws;
(iv) acquire or agree to acquire acquire, by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, in 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, except those other than (A) transactions that are in the ordinary course of business which and consistent with past practice and not material to the Company or any of and its Subsidiaries is obligated to consummate, taken as a whole and the (B) acquisitions for an aggregate consideration for which consists solely of cash, pursuant to agreements to which paid or payable by the Company or any of and its Subsidiaries is a party (valuing any non-cash consideration at its fair market value and any contingent payments at the maximum amount payable and treating any liabilities assumed as consideration paid) in effect as of the date hereof; an amount not to exceed $15,000,000;
(v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than (A) transactions that are in the ordinary course of business and consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its Subsidiaries or between any of such Subsidiaries; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than as required by law; (ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any severance or termination pay to, or A-23whole and
Appears in 1 contract
Samples: Current Report
Actions by the Company. Except as expressly permitted by clauses (i) through (xiiixiv) of this Section 4.1(b4.l(b), during the period from the date of this Agreement through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in in, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best good faith efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by or necessary to effect this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: (i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends such; provided, however, that if the transactions contemplated by this Agreement have not closed by May 28, 1999, the Company may declare a dividend of $0.25 per share in June, payable in July, and other distributions by Subsidiaries)may thereafter resume its regular quarterly dividend, (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cy) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares except issuances of Company Common Stock upon (A) pursuant to the exercise of a Company Options outstanding on Stock Option granted prior to the date of this Agreement in accordance with their current termshereof, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b)the Company Warrant, and (C) in accordance with Schedule 3.6; provided that no additional options shall be granted after the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Companydate hereof; (iii) amend its Charter Articles of Incorporation or Bylaws; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; (v) sell, lease or otherwise dispose of, of or agree to sell, lease or otherwise dispose of, any of its assets, other than transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; (viv) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its Subsidiaries or between any of such Subsidiaries; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than as required by law; (ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any severance or termination pay to, or A-2329
Appears in 1 contract
Actions by the Company. Except as expressly permitted by clauses (i) through (xiii) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, in all material respects carry on its business in the ordinary A-22 23 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: (i)(A) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends and other distributions by Subsidiaries), (B) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; (iii) amend its Charter or Bylaws; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; (v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its Subsidiaries or between any of such Subsidiaries; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than as required by law; (ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any severance or termination pay to, or A-2324
Appears in 1 contract
Samples: Merger Agreement (Nova Corp \Ga\)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiiixvi) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company Company, subject to Section 4.2 hereof, shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, from the Company date of this Agreement to the Effective Time, the Company, subject to Section 4.2 hereof, shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders stockholders in their capacity as such (other than dividends and other distributions by Subsidiaries), (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or stock, (Cy) subject to the limitations except as set forth in Sections 4.4 and 5.9(b)Schedule 4.1(b)(i) of the Company Disclosure Letter, purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or the capital stock of any Subsidiaries, or any securities thereof, or any rights, warrants or options to acquire any such shares or other securities; securities or (z) institute any share repurchase program;
(ii) issue, deliver, sell, pledge, dispose of of, grant, transfer or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible or exchangeable into, or exercisable for, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; ;
(iii) amend its Charter charter, or Bylaws; by-laws;
(iv) except as set forth in Schedule 4.1(b)(iv) of the Company Disclosure Letter and except for inventory, merchandise, finished goods and accounts receivable acquired in the ordinary course of business, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions assets other than acquisitions of assets in the ordinary course of business consistent with past practice, the value of which do not exceed $50 million in the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; aggregate;
(v) except as set forth in Schedule 4.1(b)(v) of the Company Disclosure Letter, sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, assets other than (A) sales of inventory, merchandise and finished goods in the ordinary course of business, (B) transactions that are in the ordinary course of business consistent with past practice and practice, not material to the Company and its Subsidiaries taken as a whole; , and in an aggregate amount greater than $50 million and (C) as may be required by any Governmental Entity;
(vi) except as set forth in Schedule 4.1(b)(vi) of the Company Disclosure Letter, incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) indebtedness incurred in the ordinary course of business consistent with past practices practice and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries; ;
(vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; ;
(viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than (A) as required by law; , or (B) as expressly contemplated by this Agreement;
(ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or officers, employees, or directors except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any additional rights to severance or termination pay to, or A-23enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as set forth on Schedule 4.1(b)(ix) of the Company Disclosure Letter or as may be required to comply with applicable law, amend or take action in any such case in a manner so as to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(x) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable federal, state or local law, rule, regulation, guideline or ordinance;
(xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by GAAP);
(xii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability or refund involving taxes in excess of $1,000,000;
(xiii) except as set forth in Schedule 4.1(b)(xiii) of the Company Disclosure Letter, enter into any contract (other than for inventory, merchandise or finished goods) that cannot be canceled on 30 days' notice pursuant to which it is obligated in an amount in excess of $1,000,000;
(xiv) other than as required by law, make any material changes to terms and conditions of its credit cards issued, or change in any material respect the underwriting standards therefor;
(xv) make any capital expenditure in the aggregate in excess of $2,000,000, other than expenditures (and contracts for such expenditures) set forth in the Company's current capital budget included as Schedule 4.1(b)(xv) of the Company Disclosure Letter; or
(xvi) authorize, recommend, or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Proffitts Inc)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiiixvi) of this Section 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company Company, subject to Section 4.2 hereof, shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, from the Company date of this Agreement to the Effective Time, the Company, subject to Section 4.2 hereof, shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: (i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders stockholders in their capacity as such (other than dividends and other distributions by Subsidiaries), (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or stock, (Cy) subject to the limitations except as set forth in Sections 4.4 and 5.9(b)Schedule 4.1(b)(i) of the Company Disclosure Letter, purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or the capital stock of any Subsidiaries, or any securities thereof, or any rights, warrants or options to acquire any such shares or other securitiessecurities or (z) institute any share repurchase program; (ii) issue, deliver, sell, pledge, dispose of of, grant, transfer or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible or exchangeable into, or exercisable for, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; (iii) amend its Charter charter, or Bylawsby-laws; (iv) except as set forth in Schedule 4.1(b)(iv) of the Company Disclosure Letter and except for inventory, merchandise, finished goods and accounts receivable acquired in the ordinary course of business, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions assets other than acquisitions of assets in the ordinary course of business consistent with past practice, the value of which do not exceed $50 million in the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereofaggregate; (v) except as set forth in Schedule 4.1(b)(v) of the Company Disclosure Letter, sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, assets other than (A) sales of inventory, merchandise and finished goods in the ordinary course of business, (B) transactions that are in the ordinary course of business consistent with past practice and practice, not material to the Company and its Subsidiaries taken as a whole, and in an aggregate amount greater than $50 million and (C) as may be required by any Governmental Entity; (vi) except as set forth in Schedule 4.1(b)(vi) of the Company Disclosure Letter, incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) indebtedness incurred in the ordinary course of business consistent with past practices practice and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than (A) as required by law, or (B) as expressly contemplated by this Agreement; (ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or officers, employees, or directors except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any additional rights to severance or termination pay to, or A-23enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as set forth on Schedule 4.1(b)(ix) of the Company Disclosure Letter or as may be required to comply with applicable law, amend or take action in any such case in a manner so as to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (x) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable federal, state or local law, rule, regulation, guideline or ordinance; (xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by GAAP); (xii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability or refund involving taxes in excess of $1,000,000; (xiii) except as set forth in Schedule 4.1(b)(xiii) of the Company Disclosure Letter, enter into any contract (other than for inventory, merchandise or finished goods) that cannot be canceled on 30 days' notice pursuant to which it is obligated in an amount in excess of $1,000,000; (xiv) other than as required by law, make any material changes to terms and conditions of its credit cards issued, or change in any material respect the underwriting standards therefor; (xv) make any capital expenditure in the aggregate in excess of $2,000,000, other than expenditures (and contracts for such expenditures) set forth in the Company's current capital budget included as Schedule 4.1(b)(xv) of the Company Disclosure Letter; or (xvi) authorize, recommend, or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Saks Holdings Inc)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiii) of this Section 4.1(b) and as set forth in Schedule 4.1(b), during the period from the date of this Agreement through the Effective Time, the Company Company, subject to Section 4.2 hereof, shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in in, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, the Company Company, subject to Section 4.2 hereof, shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends and other distributions by Subsidiaries), (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or stock, (Cy) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or the capital stock of any Subsidiaries, or any securities thereof, or any rights, warrants or options to acquire any such shares or other securities; securities or (z) reinstate the Share Repurchase Program or institute any similar share repurchase program;
(ii) issue, deliver, sell, pledge, dispose of of, grant, transfer or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible or exchangeable into, or exercisable for, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of shares of Company Common Stock in connection with acquisitions permitted securities pursuant to clause (iv) of this paragraph (b)the 1996 Directors' Stock Compensation Plan or the Company Rights Plan, and or (C) the issuance by any wholly-owned Subsidiary of the Company of its capital stock to the Company or another wholly-owned Subsidiary of the Company; ;
(iii) amend its Charter Articles of Incorporation or Bylaws; By-Laws;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions assets other than acquisitions of assets in the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; consistent with past practice;
(v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than (A) transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; whole and (B) as may be required by any Governmental Entity;
(vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) indebtedness incurred in the ordinary course of business consistent with past practices practice and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries; ;
(vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; ;
(viii) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, other than (A) as required by law; , or (B) as expressly contemplated by this Agreement;
(ix) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or grant any additional rights to severance or termination pay to, or A-23enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as set forth on Schedule 4.1(b) or as may be required to comply with applicable law, amend or take action in any such case in a manner so as to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(x) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance;
(xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by GAAP);
(xii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability; or
(xiii) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Proffitts Inc)
Actions by the Company. Except as expressly permitted by clauses (i) through (xiiixiv) of this Section 4.1(b4.l(b), during the period from the date of this Agreement through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, in all material respects respects, carry on its business in in, the ordinary A-22 course of its business as currently conducted and, to the extent consistent therewith, use reasonable best good faith efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by or necessary to effect this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent, which consent, for purposes of Section 4.1(b)(iv), may not be unreasonably withheld or delayed: :
(i)(Ai) (w) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its shareholders in their capacity as such (other than dividends such; provided, however, that if the transactions contemplated by this Agreement have not closed by May 28, 1999, the Company may declare a dividend of $0.25 per share in June, payable in July, and other distributions by Subsidiaries)may thereafter resume its regular quarterly dividend, (Bx) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cy) subject to the limitations set forth in Sections 4.4 and 5.9(b), purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; ;
(ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, except issuances of Company Common Stock (A) pursuant to the exercise of a Company Stock Option granted prior to the date hereof, (B) pursuant to the Company Warrant, and (C) in accordance with Schedule 3.6; provided that no additional options shall be granted after the date hereof;
(iii) amend its Articles of Incorporation or Bylaws;
(iv) sell, lease or otherwise dispose of or agree to sell, lease or otherwise dispose of, any of its assets, other than transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole;
(v) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the issuance ordinary course of shares of Company Common Stock upon the exercise of Company Options outstanding on the date of this Agreement in accordance business consistent with their current termspast practice, and (B) the issuance indebtedness, loans, advances, capital contributions and investments between Company and any of shares of Company Common Stock in connection with acquisitions permitted pursuant to clause (iv) of this paragraph (b), and (C) the issuance by any its wholly-owned Subsidiary Subsidiaries or between any of the Company of its capital stock to the Company or another such wholly-owned Subsidiary of the Company; Subsidiaries;
(iii) amend its Charter or Bylaws; (ivvi) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, 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, except those transactions in assets outside of the ordinary course of business which the Company or any of its Subsidiaries is obligated to consummate, and the consideration for which consists solely of cash, pursuant to agreements to which the Company or any of its Subsidiaries is a party in effect as of the date hereof; (v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than transactions that are in the ordinary course of business consistent with past practice and not material to the Company and its Subsidiaries taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its Subsidiaries or between any of such Subsidiaries; business;
(vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; ;
(viii) knowingly violate or knowingly fail to perform any material obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance;
(ix) enter into or adopt, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement, except one that can be terminated on 30-days' notice without cost, the payment of any penalty, or termination fee, other than as required by law; ;
(ixx) except as set forth in Schedule 4.1(b)(ix), increase the compensation payable or to become payable to its officers or employees, except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries, or, except pursuant to existing plans or policies, grant any severance or termination pay to, or A-23enter into any employment or severance agreement with, any employee of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(xi) take any action, other than reasonable and usual actions in the ordinary course of business consistent with past practice, with respect to accounting policies or procedures (other than actions required to be taken by generally accepted accounting principles);
(xii) take any action or knowingly omit to take any action which would cause any of its representations or warranties contained in this Agreement to be untrue in any material respect or result in a material breach of any covenant made by it in this Agreement;
(xiii) make any Tax election or settle or compromise any material federal, state, local or foreign income Tax liability; or (xiv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
