Additional Covenants and Agreements of the Parties. 6.1. Conduct of the Business of eShare. Except with the prior written consent of Melita or as expressly contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time: (i) eShare will conduct its business only in, and eShare will not take any action except in, the ordinary course consistent with past practice, (ii) eShare will not enter into any material transaction other than in the ordinary course of business consistent with past practice and (iii) to the extent consistent with the foregoing, with no less diligence and effort than would be applied in the absence of this Agreement, eShare will preserve intact its current business organizations and reputation, keep available the service of its current officers and employees, preserve its relationships with customers, suppliers and others having business dealings with it with the objective that their goodwill and ongoing businesses shall be unimpaired at the Effective Time and comply in all material respects with all Laws and Orders of all Governmental Bodies or regulatory authorities applicable to it. Without limiting the generality of the foregoing and except as otherwise expressly permitted in this Agreement, prior to the Effective Time, eShare will not, without the prior written consent of Melita (except to the extent set forth in the eShare Disclosure Schedule): (a) except for (i) 1,670,769 shares of eShare Common Stock reserved for issuance upon exercise of eShare Options outstanding as of the date hereof and (ii) 589,367 shares of eShare Common Stock reserved for issuance upon exercise of eShare Warrants outstanding as of the date hereof, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock, or (B) any other securities in respect of, in lieu of, or in substitution for, shares of the capital stock of eShare outstanding on the date hereof; (b) except as contemplated in subsection (a) above, directly or indirectly redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, any of its outstanding securities or any Option with respect thereto; (c) split, combine, subdivide, reclassify or take similar action with respect to any shares of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such, other than in a manner consistent with prior business practices; (d) (i) increase in any manner the compensation or fringe benefits of any of its directors or officers; (ii) increase in any manner the compensation or fringe benefits of any employee (other than a director or officer) other than merit increases in the ordinary course of business consistent with past practice (including dates of review and of effectiveness of merit increases) that, in the aggregate, do not result in a material increase in benefits or compensation expense to eShare; (iii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, pension or employment plans, agreements or arrangements as in effect on the date hereof to any such director, officer or employees, whether past or present; (iv) enter into any new or amend any existing employment agreement with any such director, officer or employee; (v) enter into any new or amend any existing severance agreement with any such director, officer or employee; or (vi) except as may be required to comply with applicable law, become obligated under any new pension plan or arrangement, welfare plan or arrangement, multi-employer plan or arrangement, employee benefit plan or arrangement, severance plan or arrangement, benefit plan or arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing or accelerating any benefits thereunder; (e) enter into any contract or amend or modify any existing contract, or engage in any new transaction outside the ordinary course of business and not consistent with past practice or not on an arm's length basis, with any Affiliate of eShare; (f) adopt a plan of complete or partial liquidation, or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of eShare (other than the Merger); (g) make any acquisition, by means of merger, consolidation, purchase of a substantial equity interest in or a substantial portion of the assets of, or otherwise, of (i) any business or corporation, partnership, association or other business organization or division thereof or (ii) except in the ordinary course and consistent with past practice, any other assets; (h) adopt or propose any amendments to its Certificate of Incorporation or By-laws, except as contemplated by this Agreement; (i) other than borrowings under existing credit facilities or other borrowings in the ordinary course (but in all cases only in the aggregate at any time outstanding up to $100,000 of additional borrowings after the date hereof), (x) incur any indebtedness for borrowed money or guarantee any such indebtedness other than in the ordinary course of business consistent with past practices or, except in the ordinary course consistent with past practice, (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled repayment date with respect to, or waive any right under, any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice; (j) make any change in the lines of business in which it participates or is engaged; (k) enter into any agreement providing for acceleration of payment or performance or other consequence as a result of a change of control of eShare; (l) enter into any contract, arrangement or understanding requiring the purchase of equipment, materials, supplies or services over a period greater than 12 months and for the expenditure of greater than $300,000 per year which is not cancelable without penalty on 30 days' or less notice; or (m) except to the extent required by applicable law, (x) permit any material change in (A) pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or tax practice or policy or (B) any method or calculating any bad debt, contingency or other reserve for accounting, financial reporting or tax purposes or (y) make any material tax election or settle or compromise any material income tax liability with any Governmental Body or regulatory authority; provided, however, that eShare may increase its policy pricing in the ordinary course of business; (n) other than dispositions of assets which are not, individually or in the aggregate, material to eShare, sell, lease, grant any security interest in or otherwise dispose of or encumber any of its assets or properties; (o) take any action that would cause any representations set forth in Article 4 not to be true in all material respects from and after the date hereof until the Effective Time; (p) fail to maintain in full force the insurance policies in effect on the date hereof or change any self-insurance program in effect in any material respect; (q) in the event that a claim is made for damage, which damage would have an eShare Material Adverse Effect during the period prior to the Closing Date which is covered by such insurance, fail to promptly notify Melita of the pendency of such a claim; (r) do any act or omit to do any act, or permit any act or omission to act, which will cause a breach of any Contract or commitment of eShare, except to the extent that such breach would not have an eShare Material Adverse Effect; (s) fail to duly comply with all Laws and Orders applicable to it and its properties, operations, business and employees except to the extent that such non-compliance would not have an eShare Material Adverse Effect; or (t) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract to do any of the foregoing.
Appears in 1 contract
Additional Covenants and Agreements of the Parties. 6.1. Conduct of the Business of eSharethe Company. Except with the prior written consent of Melita or as -------------------------------------- expressly contemplated by this AgreementAgreement or as set forth in the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Time: (i) eShare the Company will, and will cause each of its Subsidiaries to, conduct its business only in, and eShare the Company will not take take, and will cause each of its Subsidiaries not to take, any action except in, the ordinary course consistent with past practice, (ii) eShare the Company will not, and the Company will cause each of its Subsidiaries not to, enter into any material transaction other than in the ordinary course of business consistent with past practice and (iii) to the extent consistent with the foregoing, with no less diligence and effort than would be applied in the absence of this Agreement, eShare the Company will, and will cause each of its Subsidiaries to, preserve intact its current business organizations and reputation, keep available the service of its current officers and employees, preserve its relationships with customers, suppliers and others having business dealings with it with the objective that their goodwill and ongoing businesses shall be unimpaired at the Effective Time and comply in all material respects with all Laws and Orders of all Governmental Bodies or regulatory authorities applicable to it. Without limiting the generality of the foregoing and except as otherwise expressly permitted in this Agreement, prior to the Effective Time, eShare the Company will notnot and will not permit any of its Subsidiaries to, without the prior written consent of Melita the Purchaser (except to the extent set forth in the eShare Company Disclosure Schedule):
(a) except for (i) 1,670,769 534,500 shares of eShare Company Common Stock reserved for issuance upon exercise of eShare Company Options outstanding as of the date hereof and or issuable pursuant to Page 62 of 106 additional Company Options which may be granted after the date hereof but prior to the Effective Time (ii) 589,367 97,000 shares of eShare Company Common Stock reserved for issuance upon exercise pursuant to warrants and (ii) 157,500 additional shares of eShare Warrants outstanding as Company Common Stock which may be issued after the date hereof but prior to the Effective Time in connection with the acquisition of minority interests in certain Subsidiaries of the date hereofCompany, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock, or (B) any other securities in respect of, in lieu of, or in substitution for, shares of the capital stock of eShare Shares outstanding on the date hereof;
(b) except as contemplated in subsection (a) above, directly or indirectly redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, any of its outstanding securities (including the Shares) or any Option with respect thereto;
(c) split, combine, subdivide, reclassify or take similar action with respect to any shares of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such, other than in a manner consistent with prior business practices;
(d) (i) increase in any manner the compensation or fringe benefits of any of its directors directors, officers or officers; (ii) increase in any manner the compensation or fringe benefits of any employee (other than a director or officer) other than merit employees, except for normal increases in the ordinary course of business consistent with past practice (including dates of review and of effectiveness of merit increases) that, in the aggregate, do not result in a material increase in benefits or compensation expense to eShare; the Company and its Subsidiaries taken as a whole, (iiiii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, pension or employment plans, agreements or arrangements as in effect on the date hereof to any such director, officer or employees, whether past or presentpresent that, in the aggregate, result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole; (iviii) enter into any new or amend any existing employment agreement with any such director, officer or employee; , except for employment agreements with new employees entered into in the ordinary course of business consistent with past practice, that, in the aggregate, do not and will not result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole, (viv) enter into any new or amend any existing severance agreement with any such director, officer or employee; , except as permitted in the Company Disclosure Schedule and except for severance agreements in the ordinary course of business consistent with past practice, that in the aggregate do not and will not result in a material increase in the benefits or compensation expense to the Company and its Subsidiaries taken as a whole, or (viv) except as may be required to comply with applicable law, become obligated under any new pension plan or arrangement, welfare plan or arrangement, multi-employer plan or arrangement, employee benefit plan or arrangement, severance plan or arrangement, benefit plan or arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing or accelerating any benefits thereunder, except for plans, arrangements or amendments in the ordinary course of business consistent with past practice, that, in the aggregate do not result in a material increase in the benefits or compensation expense to the Company and its Subsidiaries taken as whole;
(e) enter into any contract or amend or modify any existing contract, or engage in any new transaction outside the ordinary course of business and not consistent with past practice or not on an arm's length basis, with any Affiliate of eSharethe Company or any of its Subsidiaries;
(f) adopt a plan of complete or partial liquidation, or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of eShare the Company or any of its Subsidiaries (other than the Merger, and other than such of the foregoing with respect to any subsidiary of the Company as do not change the beneficial ownership interest of the Company in such Subsidiary);
(g) make any acquisition, by means of merger, consolidation, purchase of a substantial equity interest in or a substantial portion of the assets of, or otherwise, of (i) any business or corporation, partnership, association or other business organization or division thereof or (ii) except in the ordinary course and consistent with past practice, any other assets;
(h) adopt or propose any amendments to its Certificate of Incorporation or By-lawsBylaws, except as contemplated by this Agreement, or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary not constituting an inactive Subsidiary of the Company;
(i) other than borrowings under existing credit facilities or other borrowings in the ordinary course (but in all cases only in the aggregate at any time outstanding up to $100,000 1,000,000 of additional borrowings after the date hereof), (x) incur any indebtedness for borrowed money or guarantee any such indebtedness other than in the ordinary course of business consistent with past practices or, except in the ordinary course consistent with past practice, (y) make any loans, advances or capital contributions to, or investments in, any other Person (other than to the Company or any Wholly Owned Subsidiary of the Company) or (z) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled repayment date with respect to, or waive any right under, any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice;
(j) make any change in the lines of business in which it participates or is engaged;
(k) enter into any agreement providing for acceleration of payment or performance or other consequence as a result of a change of control of eSharethe Company or its Subsidiaries;
(l) enter into any contract, arrangement or understanding requiring the purchase of equipment, materials, supplies or services over a period greater than 12 months and for the expenditure of greater than $300,000 500,000 per year which is not cancelable without penalty on 30 days' or less notice; or
(m) except to the extent required by applicable law, (x) permit any material change in (A) pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or tax practice or policy or (B) any method or calculating any bad debt, contingency or other reserve for accounting, financial reporting or tax purposes or (y) make any material tax election or settle or compromise any material income tax liability with any Governmental Body or regulatory authority; provided, however, that eShare may increase its policy pricing in the ordinary course of business;
(n) other than dispositions of assets which are not, individually or in the aggregate, material to eSharethe Company and its Subsidiaries taken as a whole, sell, lease, grant any security interest in or otherwise dispose of or encumber any of its assets or properties;
(o) take any action that would cause any representations set forth in Article 4 not to be true in all material respects from and after the date hereof until the Effective Time;
(p) fail to maintain in full force the insurance policies in effect on the date hereof or change any self-insurance program in effect in any material respect;
(q) in the event that a claim is made for damage, which damage would have an eShare a Company Material Adverse Effect during the period prior to the Closing Date which is covered by such insurance, fail to promptly notify Melita the Purchaser of the pendency of such a claim;
(r) do any act or omit to do any act, or permit any act or omission to act, which will cause a breach of any Contract or commitment of eSharethe Company or any of its Subsidiaries, except to the extent that such breach would not have an eShare a Company Material Adverse Effect;
(s) fail to duly comply with all Laws and Orders applicable to it and its properties, operations, business and employees except to the extent that such non-compliance would not have an eShare a Company Material Adverse Effect; or
(t) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract to do any of the foregoing.
Appears in 1 contract
Additional Covenants and Agreements of the Parties. 6.1. Conduct 3.1 Prior to December 31, 1999, Purchaser shall file a shelf registration statement on Form S-3 (or other applicable form) under the Securities Act of 1933 (the "Securities Act") and such registration statement shall cover the resale by the Sellers all of the Business of eShare. Except XXXX Shares to be issued to the Sellers pursuant to Section 2.3 Purchaser will use commercially reasonable efforts to cause such registration statement to become effective as soon as reasonably practicable.
3.2 Without limiting the foregoing, if at any time prior to the date that the shelf registration statement is declared effective by the Securities and Exchange Commission, XXXX proposes to file a registration statement under the Securities Act with the prior written consent Securities and Exchange Commission covering any of Melita its shares of Common Stock (whether for XXXX or as expressly contemplated by for any other party), other than a registration statement solely covering shares issuable pursuant to employment benefit plans of XXXX or solely covering shares to be issued in connection with a corporate acquisition, then XXXX agrees to include all of the XXXX Shares to be issued to the Sellers pursuant to Section 2.3 on such registration statement (the "Piggy Back Registration Right"). In such case, Sellers agree to cooperate with XXXX and the underwriters with respect to the offering, including execution of an underwriting agreement.
3.3 XXXX shall pay all costs of the registration statement filed pursuant to Section 3.1 or Section 3.2, except that Sellers shall pay (i) to retain counsel to the Sellers and (ii) all underwriting discounts, fees and commissions applicable to the sale of their XXXX Shares.
3.4 Notwithstanding anything to the contrary set forth in this Agreement, during if XXXX is at any time in possession of material, non-public information that it deems advisable not to disclose publicly or XXXX otherwise determines in good faith that an event shall have occurred or a condition shall exist that results in the period from the date of this Agreement applicable registration statement filed pursuant to Section 3.1 or Section 3.2 containing a material misstatement or omission and it delivers written notice to each Seller to the Effective Time: (i) eShare will conduct its effect that such Seller may not make offers or sales under the registration statement until further notified by XXXX, Sellers shall refrain from making offers or sales under the registration statement until the registration statement has been amended or supplemented and Sellers receive written notice to such effect from XXXX.
3.5 If Purchaser becomes insolvent or makes an assignment for the benefit of creditors or ceases to do business only in, and eShare will not take any action except in, the ordinary course consistent with past practice, (ii) eShare will not enter into any material transaction other than in the ordinary course (excluding any acquisition, merger or business combination involving Purchaser), then Sellers shall have an option to repurchase the Assets including domain name and Internet protocol address of the Site from Purchaser at a mutually agreeable price.
3.6 To effect the transfer of ownership of the Trademark Interests to Purchaser, including the goodwill of all business consistent with past practice and (iii) to the extent consistent connected with the foregoinguse of and symbolized by the Trademark Interests, with no less diligence and effort than would be applied in the absence of this Agreement, eShare will preserve intact its current business organizations and reputation, keep available the service of its current officers and employees, preserve its relationships with customers, suppliers and others having business dealings with it with the objective that their goodwill and ongoing businesses shall be unimpaired at the Effective Time and comply in all material respects with all Laws and Orders of all Governmental Bodies or regulatory authorities applicable to it. Without limiting the generality of the foregoing and except as otherwise expressly permitted in this Agreement, prior to the Effective Time, eShare will not, without the prior written consent of Melita (except to the extent set forth in the eShare Disclosure Schedule):Sellers will:
(a) except for (i) 1,670,769 shares of eShare Common Stock reserved for issuance upon exercise of eShare Options outstanding as of Provide Purchaser with information and documentation regarding the date hereof standards and (ii) 589,367 shares of eShare Common Stock reserved for issuance upon exercise of eShare Warrants outstanding as of specifications applicable to the date hereof, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock, or (B) any other securities in respect of, in lieu of, or in substitution for, shares of the capital stock of eShare outstanding on the date hereofSite;
(b) except as contemplated in subsection (a) above, directly or indirectly redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, any of its outstanding securities or any Option Furnish Purchaser with respect theretothe files evidencing all proceedings involving the Trademark Interests;
(c) split, combine, subdivide, reclassify or take similar action with respect to any shares Execute the Assignment of its capital stock or issue or authorize or propose Intellectual Property substantially in the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity form attached hereto as such, other than in a manner consistent with prior business practices;EXHIBIT A; and
(d) (i) increase Provide all reasonable assistance to Purchaser in preparing applications for registration of all non-registered trademarks, service marks and trade names pertaining to the Site and when reasonably requested by Purchaser, provided that any manner out of pocket expenses associated therewith shall be borne by Purchaser.
3.7 Sellers covenant not to use or display the compensation Trademark Interests, or fringe benefits of any of its directors or officers; (ii) increase in any manner the compensation or fringe benefits of any employee (other than a director or officer) other than merit increases xxxx confusingly similar thereto, anywhere in the ordinary course world, and further covenant not to content or challenge the validity of business consistent with past practice (including dates the Trademark Interests, any applicable registrations thereof or the ownership of review and the Trademark Interests by Purchaser.
3.8 To effect the transfer of effectiveness ownership of merit increases) thatthe Copyright Interests to Purchaser, Sellers will execute the Assignment of Intellectual Property substantially in the aggregate, do not result form attached hereto as EXHIBIT A.
3.9 Xxxxxx covenants to identify himself in a material increase in benefits all publications and speaking engagements as an employee or compensation expense to eShare; consultant (iiias applicable) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, pension or employment plans, agreements or arrangements as in effect on the date hereof to any such director, officer or employees, Purchaser (whether past or present; (iv) enter into any new or amend any existing employment agreement with any such director, officer or employee; (v) enter into any new or amend any existing severance agreement with any such director, officer or employee; or (vi) except as may be required to comply with applicable law, become obligated under any new pension plan or arrangement, welfare plan or arrangement, multi-employer plan or arrangement, employee benefit plan or arrangement, severance plan or arrangement, benefit plan or arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing or accelerating any benefits thereunder;
(e) enter into any contract or amend or modify any existing contract, or engage in any new transaction outside the ordinary course of business and not consistent with past practice or not on an arm's length basis, with any Affiliate of eShare;such publication or speaking engagement is related to Purchaser) so long as Xxxxxx is employed by or providing consulting services to Purchaser.
(f) adopt a plan of complete 3.10 Each Seller covenants to use his or partial liquidation, or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of eShare (other than the Merger);
(g) make any acquisition, by means of merger, consolidation, purchase of a substantial equity interest in or a substantial portion of the assets of, or otherwise, of (i) any business or corporation, partnership, association or other business organization or division thereof or (ii) except in the ordinary course and consistent with past practice, any other assets;
(h) adopt or propose any amendments her best efforts to its Certificate of Incorporation or By-laws, except as contemplated by this Agreement;
(i) other than borrowings under provide all existing credit facilities or other borrowings in the ordinary course (but in all cases only in the aggregate at any time outstanding up to $100,000 of additional borrowings after the date hereof), (x) incur any indebtedness for borrowed money or guarantee any such indebtedness other than in the ordinary course of business consistent with past practices or, except in the ordinary course consistent with past practice, (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled repayment date with respect to, or waive any right under, any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice;
(j) make any change in the lines of business in which it participates or is engaged;
(k) enter into any agreement providing for acceleration of payment or performance or other consequence as a result of a change of control of eShare;
(l) enter into any contract, arrangement or understanding requiring the purchase of equipment, materials, supplies or services over a period greater than 12 months and for the expenditure of greater than $300,000 per year which is not cancelable without penalty on 30 days' or less notice; or
(m) except documentation relating to the extent required by applicable law, (x) permit any material change in (A) pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance Site or tax practice or policy or (B) any method or calculating any bad debt, contingency or other reserve for accounting, financial reporting or tax purposes or (y) make any material tax election or settle or compromise any material income tax liability with any Governmental Body or regulatory authority; provided, however, that eShare may increase its policy pricing in the ordinary course of business;
(n) other than dispositions of assets which are not, individually or in the aggregate, material to eShare, sell, lease, grant any security interest in or otherwise dispose of or encumber any of its assets or properties;
(o) take any action that would cause any representations set forth in Article 4 not to be true in all material respects from Assets and after the date hereof until the Effective Time;
(p) fail to maintain in full force the insurance policies in effect on the date hereof or change any self-insurance program in effect in any material respect;
(q) in the event that a claim is made for damage, which damage would have an eShare Material Adverse Effect during the period prior to the Closing Date which is covered by such insurance, fail to promptly notify Melita of the pendency of such a claim;
(r) do any act or omit to do any act, or permit any act or omission all things that Purchaser reasonably requests to act, which will cause a breach of any Contract or commitment of eShare, except to transfer the extent that such breach would not have an eShare Material Adverse Effect;
(s) fail to duly comply with all Laws and Orders applicable to it and its properties, operations, business and employees except to the extent that such non-compliance would not have an eShare Material Adverse Effect; or
(t) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract to do any of the foregoingAssets.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Adam Com Inc /De/)
Additional Covenants and Agreements of the Parties. 6.1. Conduct of the Business of eSharethe Company. Except with the prior written consent of Melita or as expressly contemplated by this AgreementAgreement or as set forth in the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Time: (i) eShare the Company will, and will cause each of its Subsidiaries to, conduct its business only in, and eShare the Company will not take take, and will cause each of its Subsidiaries not to take, any action except in, the ordinary course consistent with past practice, (ii) eShare the Company will not, and the Company will cause each of its Subsidiaries not to, enter into any material transaction other than in the ordinary course of business consistent with past practice practice, and (iii) to the extent consistent with the foregoing, with no less diligence and effort than would be applied in the absence of this Agreement, eShare the Company will, and will cause each of its Subsidiaries to, preserve intact its current business organizations and reputation, keep available the service of its current officers and employees, preserve its relationships with customers, suppliers and others having business dealings with it with the objective that their goodwill and ongoing businesses shall be unimpaired at the Effective Time and comply in all material respects with all Laws and Orders of all Governmental Bodies or regulatory authorities applicable to it. Without limiting the generality of the foregoing and except as otherwise expressly permitted in this Agreement, prior to the Effective Time, eShare the Company will notnot and will not permit any of its Subsidiaries to, without the prior written consent of Melita the Purchaser (except to the extent set forth in the eShare Company Disclosure Schedule):
(a) except for (i) 1,670,769 490,000 shares of eShare Company Common Stock reserved for issuance upon exercise of eShare Company Options outstanding as of the date hereof or issuable pursuant to additional Company Options which may be granted after the date hereof but prior to the Effective Time, and (ii) 589,367 93,324 shares of eShare Company Common Stock reserved for issuance upon exercise of eShare Warrants outstanding as of the date hereofpursuant to warrants, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock, or (B) any other securities in respect of, in lieu of, or in substitution for, shares of the capital stock of eShare Shares outstanding on the date hereof;
(b) except as contemplated in subsection (a) above, directly or indirectly redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, any of its outstanding securities (including the Shares) or any Option with respect thereto;
(c) split, combine, subdivide, reclassify or take similar action with respect to any shares of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such, other than in a manner consistent with prior business practices;
(d) (i) increase in any manner the compensation or fringe benefits of any of its directors directors, officers or officers; (ii) increase in any manner the compensation or fringe benefits of any employee (other than a director or officer) other than merit employees, except for normal increases in the ordinary course of business consistent with past practice (including dates of review and of effectiveness of merit increases) that, in the aggregate, do not result in a material increase in benefits or compensation expense to eShare; the Company and its Subsidiaries taken as a whole, (iiiii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, pension or employment plans, agreements or arrangements as in effect on the date hereof to any such director, officer or employees, whether past or present; present that, in the aggregate, result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole, (iviii) enter into any new or amend any existing employment agreement with any such director, officer or employee; , except for employment agreements with new employees entered into in the ordinary course of business consistent with past practice, that, in the aggregate, do not and will not result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole, or except as may be approved in writing by the Purchaser, (viv) enter into any new or amend any existing severance agreement with any such director, officer or employee; , except as permitted in the Company Disclosure Schedule and except for severance agreements in the ordinary course of business consistent with past practice, that in the aggregate do not and will not result in a material increase in the benefits or compensation expense to the Company and its Subsidiaries taken as a whole, or (viv) except as may be required to comply with applicable law, become obligated under any new pension plan or arrangement, welfare plan or arrangement, multi-employer multiemployer plan or arrangement, employee benefit plan or arrangement, severance plan or arrangement, benefit plan or arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing or accelerating any benefits thereunder, except for plans, arrangements or amendments in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in the benefits or compensation expense to the Company and its Subsidiaries taken as whole;
(e) enter into any contract or amend or modify any existing contract, or engage in any new transaction outside the ordinary course of business and not consistent with past practice or not on an arm's arm's-length basis, with any Affiliate of eSharethe Company or any of its Subsidiaries;
(f) adopt a plan of complete or partial liquidation, or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of eShare the Company or any of its Subsidiaries (other than the Merger, and other than such of the foregoing with respect to any Subsidiary of the Company as do not change the beneficial ownership interest of the Company in such Subsidiary);
(g) make any acquisition, by means of merger, consolidation, purchase of a substantial equity interest in or a substantial portion of the assets of, or otherwise, of (i) any business or corporation, partnership, association or other business organization or division thereof or (ii) except in the ordinary course and consistent with past practice, any other assets;
(h) adopt or propose any amendments to its Certificate of Incorporation or By-laws, Code of Regulations except as contemplated by this Agreement, or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary not constituting an inactive Subsidiary of the Company;
(i) other than borrowings under existing credit facilities or other borrowings in the ordinary course (but in all cases only in the aggregate at any time outstanding up to $100,000 1,000,000 of additional borrowings after the date hereof), (xi) incur any indebtedness for borrowed money or guarantee any such indebtedness other than in the ordinary course of business consistent with past practices or, except in the ordinary course consistent with past practice, (yii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to the Company or any Wholly Owned Subsidiary of the Company), or (ziii) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled repayment date with respect to, or waive any right under, any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice;
(j) make any change in the lines of business in which it participates or is engaged;
(k) enter into any agreement providing for acceleration of payment or performance or other consequence as a result of a change of control of eSharethe Company or its Subsidiaries;
(l) enter into any contract, arrangement or understanding requiring the purchase of equipment, materials, supplies or services over a period greater than 12 months and for the expenditure of greater than $300,000 500,000 per year which is not cancelable without penalty on 30 days' or less notice; or
(m) except to the extent required by applicable law, (xi) permit any material change in (A) pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or tax practice or policy or (B) any method or of calculating any bad debt, contingency or other reserve for accounting, financial reporting or tax purposes or (yii) make any material tax election or settle or compromise any material income tax liability with any Governmental Body or regulatory authority; provided, however, that eShare may increase its policy pricing in the ordinary course of business;
(n) other than dispositions of assets which are not, individually or in the aggregate, material to eSharethe Company and its Subsidiaries taken as a whole, sell, lease, grant any security interest in or otherwise dispose of or encumber any of its assets or properties;
(o) take any action that would cause any representations set forth in Article 4 not to be true in all material respects from and after the date hereof until the Effective Time;
(p) fail to maintain in full force the insurance policies in effect on the date hereof or change any self-insurance program in effect in any material respect;
(q) in the event that a claim is made for damage, which damage would have an eShare a Company Material Adverse Effect during the period prior to the Closing Date which is covered by such insurance, fail to promptly notify Melita the Purchaser of the pendency of such a claim;
(r) do any act or omit to do any act, or permit any act or omission to act, which will cause a breach of any Contract or commitment of eSharethe Company or any of its Subsidiaries, except to the extent that such breach would not have an eShare a Company Material Adverse Effect;
(s) fail to duly comply with all Laws and Orders applicable to it and its properties, operations, business and employees except to the extent that such non-compliance noncompliance would not have an eShare a Company Material Adverse Effect; or
(t) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract to do any of the foregoing.
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