Conduct of Business by the Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: the Company will, and will cause each Company Subsidiary to, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (C) use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as specifically permitted or contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent: Section 5.1.1 amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents; Section 5.1.2 (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000; Section 5.1.3 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock; Section 5.1.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities; Section 5.1. 5 (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed money; (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; (D) make or authorize any capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof; (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; or (F) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.5;
Appears in 3 contracts
Samples: Merger Agreement (Xyratex LTD), Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc)
Conduct of Business by the Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth on Schedule 6.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: , the Company will, and will cause each Company Subsidiary to, (Aa) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (Cb) use its commercially reasonable best efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons Persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth on Schedule 6.1 of the Company Disclosure Schedule or as specifically permitted or contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
Section 5.1.1 (a) amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents;
Section 5.1.2 (Ab) (i) issue, sell, pledge, dispose of, grant, transfer, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of of, any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Shares shares of Company Common Stock upon the exercise of Company Options or Options, the Company Warrants and the Parent Warrant outstanding as of the date hereof in accordance with their terms, terms or (Bii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000business;
Section 5.1.3 (c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
Section 5.1.4 (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 (Ae) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person Person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; , (Bii) incur any indebtedness Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Company Subsidiary) Person for borrowed money; , except for Indebtedness to Parent or any Affiliate of Parent, (Ciii) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; Contract other than in the ordinary course of business consistent with past practice, (Div) make or authorize any capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof; (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; hereof or (Fv) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.56.1(e);
(f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed on Schedule 4.10 of the Company Disclosure Schedule: (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices in salaries or wages of employees of the Company or any Company Subsidiary which are not across-the-board increases), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any 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, except to the extent required by applicable Law or the terms of a collective bargaining agreement in existence on the date of this Agreement or (iii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan;
(g) (i) pre-pay any long-term debt to Parent or Parent’s Affiliates, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (ii) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, (iii) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice or (iv) vary the Company’s inventory practices in any material respect from the Company’s past practices;
(h) make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) make any material tax election or settle or compromise any material liability for Taxes;
(k) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party;
(l) write up, write down or write off the book value of any assets, except for depreciation and amortization in accordance with GAAP consistently applied;
(m) take any action to exempt or make not subject to (i) the provisions of Section 203 of the DGCL or (ii) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any Person or entity (other than Parent and Merger Sub) or any action taken thereby, which Person, entity or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(n) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied;
(o) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing; or
(p) enter into a new material line of business.
Appears in 2 contracts
Samples: Merger Agreement (Vintage Capital Group, LLC), Merger Agreement (Caprius Inc)
Conduct of Business by the Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted expressly contemplated by any other provision of this AgreementAgreement or as set forth in Section 5.1 of the Company Disclosure Schedule, unless Parent shall otherwise agree consent in writing: (i) the businesses of the Company willand its Subsidiaries shall be conducted only in, and will cause each the Company Subsidiary toand its Subsidiaries shall not take any action except in, (A) maintain its existence the ordinary course of business and in good standing under applicable Lawsa manner consistent with past practice, (B) and subject to the restrictions set forth in this Section 5.1foregoing, conduct the Company will not directly or indirectly take any action that has the effect of reducing its operations only in the ordinary aggregate cash, cash equivalents and usual course of business consistent with past practice marketable securities or its net working capital (current assets less current liabilities); and (Cii) the Company shall use its commercially reasonable commercial efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary the Subsidiaries and to preserve the current relationships of the Company and each Company Subsidiary the Subsidiaries with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organizationrelations. Without limiting the foregoing, By way of amplification and as an extension thereofnot limitation, except as specifically permitted or expressly contemplated by any other provision of this Agreement, Agreement or as set forth in Section 5.1 of the Company shall not (unless required by applicable Law or Disclosure Schedule, neither the regulations or requirements of Company nor any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary toshall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree propose to do, any of the following without the prior written consent of Parent:
Section 5.1.1 (a) amend or otherwise change its certificate Certificate of incorporation Incorporation or byBy-laws or equivalent organizational documents;
Section 5.1.2 (Ab) issue, sell, pledge, dispose of, grant, transfer, grant or encumber, or otherwise subject to any Lien, or authorize the such issuance, sale, pledge, disposition, grant, transfer grant or encumbrance of of, or subjection to, any such Lien, (i) any shares of any class of capital stock of, or other Equity Interests in, of the Company or any Company Subsidiary of Subsidiary, (ii) any class, equity or securities convertible equity-based compensatory awards (provided that equity awards may be transferred in accordance with the applicable plan document or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, agreement) or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securitiesstock, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Propertyphantom interest) of the Company or any Subsidiary (except for the issuance of Shares issuable pursuant to Company Stock Options outstanding on the date of this Agreement and granted under Company Stock Plans in effect on the date of this Agreement) or (iii) any assets of the Company or any Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business and in a manner consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000;
Section 5.1.3 (c) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or a combination thereof) otherwise, with respect to any of its capital stock (other than dividends paid by a wholly-except for distributions from direct or indirect wholly owned Subsidiaries of the Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting one of its capital stockwholly owned Subsidiaries;
Section 5.1.4 (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 (Ae) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assetsassets or any other business combination) any interest in any person corporation, partnership, other business organization or any division thereof or any significant amount of assets, other than acquisitions of assets in except pursuant to transactions between the ordinary course of business consistent with past practiceCompany and its Subsidiaries or between Subsidiaries; (Bii) incur any funded indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person person; (iii) make any loans or advances other than a wholly-owned Company Subsidiary) for borrowed moneyin the ordinary course of business and consistent with past practice; (Civ) terminate, cancel enter into any contract or request any material change inagreement other than in the ordinary course of business and consistent with past practice; (iv) authorize, or agree to make any material change incommitment with respect to, any Company Material Contract; (D) make or authorize any capital expenditure in excess of $100,000 individually or in the Company’s budget as disclosed to Parent prior to the date hereof; (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing aggregate $750,000 in any line of business in any geographic areathree (3) month period; or (Fv) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under with respect to any matter set forth in this Section 5.1.55.1(e);
(f) (i) hire any additional employees except to fill the positions identified on Section 5.1(f) of the Company Disclosure Schedule or any vacancies existing on or arising after the date of this Agreement, (ii) make any offers to any executive officer of an employment position other than the employment position he or she currently holds, except for offers of an employment position made in the ordinary course of business and consistent with past practice, (iii) increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice, (iv) grant any new or additional retention, severance or termination pay to, or enter into any new or additional employment, bonus, change of control or severance agreement with, any director, officer or other employee of the Company or of any of its Subsidiaries, (v) establish, adopt, enter into, terminate or amend any Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement for the benefit of any director, officer or employee except as required by this Agreement or the Merger contemplated hereby, or as required by ERISA, the Code or to otherwise comply with applicable Law or (vi) loan or advance money or other property to any current or former director, officer or employee of the Company or any of its Subsidiaries;
(g) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the WARN Act (determined without regard to terminations of employment occurring on or after the Effective Time);
(h) change in any material respect the Company’s methods of financial accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act , as agreed to by its independent public accountants;
(i) make, revoke or change any material Tax election or material method of Tax accounting, file any amended Tax Return (unless required by Law), enter into any closing agreement relating to a material amount of Taxes, settle or compromise any material liability with respect to Taxes or consent to any material claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment;
(j) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $500,000, other than in the ordinary course of business and consistent with past practice, unless such payment, discharge or satisfaction is made in accordance with the terms of such claim, liability or obligation as such terms exist on the date of this Agreement;
(k) pay accounts payable, utilize cash, draw down on lines of credit, delay or accelerate capital expenditures, incur expenditures on research and development, other than in the ordinary course of business and consistent with past practice;
(l) except with respect to amendments or modifications of Material Contracts with customers that are in the ordinary course of business and consistent with past practices, amend or modify in any material respect, or consent to the termination of, any Material Contract, or amend, waive or modify in any material respect, or consent to the termination of, the Company’s or any Subsidiary’s rights thereunder;
(m) (i) abandon, sell, assign, or grant any security interest in or to any item of the Owned Intellectual Property or Licensed Intellectual Property, (ii) grant to any third party any license, sublicense or covenant not to sxx with respect to any Owned Intellectual Property or Licensed Intellectual Property, other than in the ordinary course of business consistent with past practice, (iii) develop, create or invent any Intellectual Property jointly with any third party (other than such joint development, creation or invention with a third party that is under contract, in progress or currently contemplated as of the date hereof), (iv) disclose, or allow to be disclosed, any confidential Owned Intellectual Property, unless such Owned Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof, or (v) fail to perform or cause to be performed all applicable filings, recordings and other acts, and pay or caused to be paid all required fees and taxes, to maintain and protect its interest in each item of the Owned Intellectual Property and the Licensed Intellectual Property, except for those items shown in Section 3.12(a)(i) or Section 3.12(a)(ii) of the Company Disclosure Schedule as abandoned;
(n) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(o) enter into any contract or agreement with any director or executive officer of the Company or any Subsidiary or any of their respective affiliates (including any immediate family member of such person) or any other affiliate of the Company or any Subsidiary; or
(p) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Carreker Corp)
Conduct of Business by the Company Pending the Effective Time. The (a) Except (i) as Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed); (ii) for such action that is expressly permitted or required pursuant to this Agreement (including Section 4.1 of the Company agrees thatDisclosure Letter); or (iii) as required by any applicable Law or Judgment or by the terms of any Contract or Employee Benefit Plan as in effect on the date hereof and disclosed on Section 4.1(a) of the Company Disclosure Letter, between the date of this Agreement and the earlier of the Effective Time, except as specifically permitted by any other provision Time and the termination of this AgreementAgreement in accordance with Section 7.1, unless Parent shall otherwise agree in writing: the Company willshall, and will shall cause each Company Subsidiary its Subsidiaries to, (A) maintain its existence conduct their respective businesses in good standing under applicable Laws, the Ordinary Course of Business; and (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (C) use its commercially their respective reasonable best efforts to keep available maintain and preserve intact the material aspects of its business organization; to maintain its business relationships and goodwill with key suppliers, key contractors, key partners, key licensors, key licensees, and other Persons with whom the Company and its Subsidiaries have significant business relationships and to retain the services of the current officers, Company’s and its Subsidiaries’ key officers and key employees on commercially reasonable terms.
(b) Without limiting the generality of the foregoing Section 4.1(a), and consultants except as (x) Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed); (y) such action is expressly permitted or required pursuant to this Agreement (including Section 4.1 of the Company Disclosure Letter); or (z) required by any applicable Law or Judgment or by the terms of any Contract or Employee Benefit Plan as in effect on the date hereof and each Company Subsidiary and preserve the current relationships disclosed in Section 4.1(b) of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as specifically permitted or contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary toDisclosure Letter, between the date of this Agreement and the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Section 7.1, the Company shall not, and shall cause its Subsidiaries not to, do any of the following:
(i) form any Subsidiary or acquire (including by merger, consolidation, acquisition of stock or assets or otherwise), in one transaction or any series of related transactions, directly or indirectly, doany assets, securities, properties, rights, interests in any Person (or agree to do, any of the following without the prior written consent of Parent:
Section 5.1.1 amend division thereof) or otherwise change its certificate of incorporation or by-laws or equivalent organizational documentsbusinesses;
Section 5.1.2 (Aii) issuesell, selllease, sublease, license, sublicense, mortgage, pledge, surrender, encumber, divest, cancel, waive, abandon or allow to lapse or expire, assign, transfer or dispose of, grant, transfer, encumbercovenant not to assert, or authorize the issuance, sale, pledge, disposition, grant, transfer create or encumbrance of incur any shares of capital stock of, or Lien (other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitationthan a Permitted Lien) on, any such interest represented by contract right)properties, of the Company assets, interests or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets rights (including Company Intellectual Property) of the Company or any Company Subsidiaryof its Subsidiaries, except other than non-exclusive licenses in the Ordinary Course of Business, or pursuant to Contracts existing contracts as of the date of this Agreement and disclosed in Section 4.1 the Company Disclosure Letter;
(iii) amend or commitments propose to amend the Certificate of Incorporation (which includes the Certificates of Designation), Bylaws or any other Organizational Documents of the sale or purchase of goods in the ordinary course of business consistent with past practiceCompany and its Subsidiaries (including by merger, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent consolidation or otherwise) in excess of $100,000);
Section 5.1.3 (iv) amend or propose to amend the terms of the Warrant Agreements;
(v) declare, set aside, make set a record date for, or pay any dividend or other distribution (whether payable in cash, capital stock, property or a otherwise (or any combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Securities or Subsidiary to the Company or to any other wholly-owned Company Subsidiary) Securities or enter into any agreement with respect to the voting of Company Securities, except for dividends or other distributions by a direct or indirect wholly-owned Company Subsidiary to its capital stockparent;
(vi) purchase, redeem or otherwise acquire, or authorize or agree to purchase, redeem or acquire, any Company Securities or Subsidiary Securities (except, with respect to Company Securities as required by the applicable Stock Plan, with respect to Company Securities pursuant to the ESPP during the Current Offering Period in compliance with the provisions of Section 5.1.4 reclassify1.11(c), or pursuant to the exercise of repurchase rights in existence on the date hereof and disclosed in Section 4.1 of the Company Disclosure Letter);
(vii) split, combine, split, subdivide or redeem, purchase reclassify, or otherwise acquire, directly or indirectly, any Company Securities or Subsidiary Securities;
(viii) issue, sell, grant, dispose of, pledge, deliver, transfer or otherwise encumber or authorize, propose or agree to the issuance, sale, grant, disposition, pledge, delivery, transfer or encumbrance by the Company or any of its capital stockSubsidiaries of, other Equity Interests any Company Securities or any other securities;
Section 5.1. 5 Subsidiary Securities, except (A) acquire for shares of Company Common Stock issuable upon the exercise or conversion of Options and Restricted Stock Units in accordance with their terms or (including, without limitation, by merger, consolidationB) for the issuance of Company Common Stock pursuant to the ESPP during the Current Offering Period in compliance with the provisions of Section 1.11(c);
(ix) commence any new, or acquisition extend any existing, offering or purchase period under the ESPP, allow new participants to participate in the ESPP, or decrease the applicable purchase price for shares of stock Company Common Stock below the levels set forth in the ESPP;
(x) (A) incur assume, endorse or assetsmodify the terms of any Indebtedness (other than trade payables) in excess of $250,000 in the aggregate, or guarantee any interest in such Indebtedness of another Person, issue or sell any person debt securities or warrants or other rights to acquire any debt securities of the Company or any division thereof Company Subsidiary, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any assetsfinancial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, or (B) redeem, repurchase, prepay, defease or cancel any Indebtedness or guarantee, other than acquisitions as required or as permitted without penalty in accordance with the terms of assets in the ordinary course Contract evidencing such Indebtedness;
(xi) (A) grant or increase the severance or termination pay to any current or former director, employee, agent or consultant of business consistent with past practicethe Company or any of its Subsidiaries; (B) incur execute any indebtedness for borrowed money employment, consultancy, deferred compensation or issue other similar agreement (or amend or terminate any debt securities such existing agreement) with any current or assume, guarantee former director or endorse, or otherwise as an accommodation become responsible for, executive officer of the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed moneyCompany; (C) terminate, cancel increase the benefits payable beyond the level of any existing severance or request any material change in, termination pay practices or agree to any material change in, any Company Material Contractemployment agreements; (D) make increase the compensation, bonus or authorize other benefits of any capital expenditure in excess current or former director or executive officer of the Company’s budget as disclosed to Parent prior to the date hereof; (E) adopt, enter into or establish any new Employee Benefit Plan or arrangement that would be an Employee Benefit Plan if in existence on the date hereof or materially amend or terminate any existing Employee Benefit Plan; (F) provide for the grant of Options, Restricted Stock Units or any other equity-based compensation awards, other than in the Ordinary Course of Business, or amend or modify the terms of any outstanding Options, Restricted Stock Units or any other equity-based compensation awards; (G) accelerate the payment, right to payment, funding or vesting of any compensation or benefits; (H) lend or advance any money or other property, or forgive any loans, to any present or former director, employee, agent or consultant of the Company; (I) hire any individual for employment with a title of Vice-President or above with the Company or any of its Subsidiaries; (J) terminate the employment of any employee of the Company with a title of Vice-President or above, other than for cause; (K) change any actuarial or other assumptions used to calculate funding obligations with respect to any Employee Benefit Plan that is required by applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or (L) enter into any collective bargaining agreement or other labor agreement;
(xii) make, change or rescind any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, enter into any closing agreement with respect to income Tax or any material amount of Taxes, surrender any right to claim a material Tax refund, settle or compromise any material Tax claim, audit or assessment, consent to any waiver of the statute of limitations period applicable to any material Tax or Tax Return, amend any income Tax Return or material Tax Return, or take any position on any income Tax Return or material Tax Return filed on or after the date of this Agreement that is inconsistent with positions taken in preparing or filing similar Tax Returns in prior periods;
(xiii) agree to or otherwise settle, compromise, release, assign or otherwise resolve in whole or in part any Action (including any Action relating to this Agreement or the Transactions) (A) for an amount in excess of $250,000 in the aggregate or any obligation or liability of the Company in excess of such amount, other than the settlement, compromise, release, assignment or resolution of Actions specifically reserved against on the Company Financial Statements, or (B) that would impose any restriction on the Company’s or any of its Subsidiaries’ ability to own or operate any of its assets, licenses, operations, rights, product lines, businesses or interests therein or require any changes to the business of the Company or any of its Subsidiaries;
(xiv) engage in any transaction or series of transactions with any Affiliate that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act, without regard to any monetary thresholds therein;
(xv) make or commit to make or otherwise authorize any capital expenditures in excess of $500,000 in the aggregate, other than budgeted as set forth in the Company’s capital expenditure budget set forth on Section 4.1(b)(xv) of the Company Disclosure Letter;
(xvi) make any loans, advances, guarantees or capital contributions to, or investments in, any other Person, whether or not in the Ordinary Course of Business, in an amount exceeding $250,000 in the aggregate;
(xvii) cancel, modify or waive any debts or claims held by the Company or any Subsidiary or waive any material rights having, in each case, a value in excess of $250,000;
(xviii) enter into any agreement, arrangement or commitment that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto its Subsidiaries, or that couldwould, after the Effective Time, limit or otherwise restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto Parent, from engaging or competing in any line of business business, product market or therapeutic area or in any geographic area; area or otherwise enter into any agreements, arrangements or commitments imposing changes or restrictions on its assets, operations or business;
(Fxix) enter into any lease or amend sublease of real property (whether as lessor, sublessor, lessee or sublessee) or modify, materially amend, terminate or fail to exercise any contractright to renew any Company Lease;
(xx) make any change to the Company’s accounting policies or procedures, agreementexcept as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act;
(xxi) adopt a plan of complete or partial liquidation (or resolutions providing for or authorizing such liquidation), commitment dissolution, merger, consolidation, restructuring, recapitalization or arrangement thatother reorganization of the Company or any of its Subsidiaries (other than the Merger) or otherwise enter into any agreements or arrangements imposing material changes or restrictions on the assets, operations or businesses of the Company or its Subsidiaries;
(xxii) (A) enter into any agreement that would constitute a Company Material Contract if fully performedit were in existence as of the date hereof, other than in the Ordinary Course of Business, it being agreed entry into any agreement that would constitute a Company Material Contract within the meaning of clause (ii), (vi), (viii), (ix), (x), (xi), or (xiii) of Section 2.19(a) if it were in existence as of the date hereof shall not be permitted deemed to be in the Ordinary Course of Business, (B) enter into any Contract between the Company or its Subsidiary and (x) an Affiliate, (y) any of their respective directors or officers or (z) any Person beneficially owning five percent (5%) or more of the outstanding Company Securities, (C) prematurely terminate, or materially amend, restate or supplement any Company Material Contract or (D) waive, release or assign any material rights or claims under any Company Material Contract;
(xxiii) fail to keep in full force and effect all material insurance policies maintained by the Company and its Subsidiaries, other than such policies that expire by their terms (in which event the Company or its Subsidiary, as applicable, shall use commercially reasonable efforts to renew or replace such policies) or changes to such policies made in the Ordinary Course of Business;
(xxiv) with respect to Company Intellectual Property, (A) sell, assign, license, sublicense, encumber, impair, abandon, fail to diligently maintain, covenant not to assert, transfer or otherwise dispose of any material right, title or interest of the Company or any of its Subsidiaries in any material Company Intellectual Property, other than granting non-exclusive licenses to Company Intellectual Property in the Ordinary Course of Business, (B) extend, amend, waive, cancel or modify any rights in or to the material Company Intellectual Property in a manner that is adverse to the Company or its Subsidiaries or other than in the Ordinary Course of Business, (C) fail to diligently prosecute the material patent applications owned by the Company or any of its Subsidiaries or exclusively licensed to the Company or any of its Subsidiaries and for which the Company or any of its Subsidiaries controls the prosecution thereof as of the date of this Agreement or (D) divulge, furnish to or make accessible any Trade Secrets within Company Intellectual Property other than in the Ordinary Course of Business to any third party who is subject to an enforceable written agreement to maintain the confidentiality of such Trade Secrets;
(xxv) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VI or the Tender Offer Conditions not being satisfied; or
(xxvi) authorize, approve, agree, commit or offer to take any of the actions precluded by this Section 5.1.5;4.1(b).
(c) Parent acknowledges and agrees that nothing contained in this Agreement shall give Parent or Merger Sub the right to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time within the meaning of applicable Antitrust Laws.
Appears in 2 contracts
Samples: Merger Agreement (Cascadian Therapeutics, Inc.), Merger Agreement (Seattle Genetics Inc /Wa)
Conduct of Business by the Company Pending the Effective Time. The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted expressly contemplated by any other provision of this AgreementAgreement or as set forth in Section 5.1 of the Disclosure Schedule, unless Parent Acquiror shall otherwise agree consent in writing: (i) the businesses of the Company will, and will cause each Company Subsidiary to, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations Subsidiaries shall be conducted only in the ordinary and usual course of business and in a manner consistent with past practice practice; and (Cii) the Company shall use reasonable commercial efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to maintain in effect all Permits that are required for the Company or such Subsidiary to carry on its commercially reasonable efforts business, to keep available the services of the current officers, key employees employees, independent contractors and consultants of the Company and each Company Subsidiary the Subsidiaries and to preserve the current relationships of the Company and each Company Subsidiary the Subsidiaries with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organizationrelations. Without limiting the foregoing, By way of example and as an extension thereofnot limitation, except as specifically permitted or expressly contemplated by any other provision of this AgreementAgreement or as set forth in Section 5.1 of the Disclosure Schedule, neither the Company shall not (unless required by applicable Law or the regulations or requirements of nor any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary toshall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree propose to do, any of the following without the prior written consent of ParentAcquiror, which shall not be unreasonably delayed, conditioned or withheld:
Section 5.1.1 (a) amend its Articles of Incorporation or otherwise change its certificate Code of incorporation or by-laws Regulations or equivalent organizational documents;
Section 5.1.2 (Ab) issue, sell, pledge, dispose of, grant, transfer, grant or encumber, or otherwise subject to any lien, or authorize the such issuance, sale, pledge, disposition, grant, transfer grant or encumbrance of of, or subjection to, any such lien, (i) any shares of any class of capital stock of, or other Equity Interests in, of the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity InterestsSubsidiary, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securitiesstock, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than Subsidiary (except for the issuance of Shares upon the exercise of Company issuable pursuant to Options or Warrants outstanding as of on the date hereof in accordance with their terms, of this Agreement) or (Bii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or in the sale or purchase case of goods clause (ii), in the ordinary course of business and in a manner consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000;
Section 5.1.3 (c) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or a combination thereof) otherwise, with respect to any of its capital stock (or other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stockequity interest;
Section 5.1.4 (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, stock or other Equity Interests or any other securitiesequity interest;
(e) except as required by the terms of this Agreement or as set forth in Section 5.1. 5 (A5.1(e) acquire (includingof the Disclosure Schedule, without limitationamend the terms or change the period of exercisability of, by mergerpurchase, consolidationrepurchase, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, redeem or otherwise as an accommodation become responsible for, the obligations of acquire any person (other than a wholly-owned Company Subsidiary) for borrowed money; (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; (D) make or authorize any capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof; (E) enter into any agreement or arrangement that limits or otherwise restricts the Company securities, including Shares, or any Company Subsidiary option, warrant or right, directly or indirectly, to acquire any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; or (F) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.5such securities;
Appears in 1 contract
Samples: Merger Agreement (MPW Industrial Services Group Inc)
Conduct of Business by the Company Pending the Effective Time. The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted expressly contemplated by any other provision of this AgreementAgreement or as set forth in Section 5.1 of the Company Disclosure Schedule, unless Parent shall otherwise agree consent in writing: (i) the businesses of the Company willand its Subsidiaries shall be conducted only in, and will cause each the Company Subsidiary toand its Subsidiaries shall not take any action except in, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business and in a manner consistent with past practice practice; and (Cii) the Company shall use reasonable commercial efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to maintain in effect all Company Permits that are required for the Company or such Subsidiary to carry on its commercially reasonable efforts business, to keep available the services of the current officers, key employees employees, independent contractors and consultants of the Company and each Company Subsidiary the Subsidiaries and to preserve the current relationships of the Company and each Company Subsidiary the Subsidiaries with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organizationrelations. Without limiting the foregoing, By way of amplification and as an extension thereofnot limitation, except as specifically permitted or expressly contemplated by any other provision of this Agreement, Agreement or as set forth in Section 5.1 of the Company shall not (unless required by applicable Law or Disclosure Schedule, neither the regulations or requirements of Company nor any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary toshall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree propose to do, any of the following without the prior written consent of Parent:
Section 5.1.1 (a) amend or otherwise change its certificate Certificate of incorporation Incorporation or byBy-laws or equivalent organizational documents;
Section 5.1.2 (Ab) issue, sell, pledge, dispose of, grant, transfer, grant or encumber, or otherwise subject to any lien, or authorize the such issuance, sale, pledge, disposition, grant, transfer grant or encumbrance of of, or subjection to, any such lien, (i) any shares of any class of capital stock of, or other Equity Interests in, of the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity InterestsSubsidiary, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securitiesstock, or any other ownership interest (including, without limitation, any such interest represented by contract rightphantom interest), of the Company or any Company Subsidiary, other than Subsidiary (except for the issuance of Shares upon the exercise of Company Options or Warrants issuable pursuant to employee stock options outstanding as of on the date hereof of this Agreement and granted under Company Stock Option Plans in accordance with their terms, effect on the date of this Agreement) or (Bii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or in the sale or purchase case of goods clause (ii), in the ordinary course of business and in a manner consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000;
Section 5.1.3 (c) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or a combination thereof) otherwise, with respect to any of its capital stock (or other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stockequity interest;
Section 5.1.4 (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockstock or other equity interest;
(e) except as required by the terms of any security as in effect on the date hereof and set forth in Section 5.1(e) of the Company Disclosure Schedule, other Equity Interests amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire any of the Company’s securities, including shares of Company Common Stock, or any other option, warrant or right, directly or indirectly, to acquire any such securities;
Section 5.1. 5 (Af) settle, pay or discharge any claim, suit or other action brought or threatened against the Company with respect to or arising out of any capital stock or other equity interest in the Company;
(g) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assetsassets or any other business combination) any interest in any person corporation, partnership, other business organization or any division thereof or any significant amount of assets, other than acquisitions of assets in except pursuant to transactions between the ordinary course of business consistent with past practiceCompany and its Subsidiaries or between Subsidiaries; (Bii) incur any funded indebtedness for borrowed money or issue any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (person, or make any loans or advances other than a wholly-owned Company Subsidiary) for borrowed moneyin the ordinary course of business and consistent with past practice and not in excess of $500,000; (Ciii) terminate, cancel or request make any material change incapital contributions to, or agree to any material change investments in, any other person, other than the Company Material Contract; (D) make or authorize any capital expenditure in excess direct or indirect Subsidiary of the Company’s budget as disclosed to Parent prior to the date hereof; (Eiv) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (v) authorize, or arrangement that limits or otherwise restricts make any commitment with respect to aggregate capital expenditures of the Company and its Subsidiaries, taken together, in excess of $10,000,000 so long as such expenditures (other than any capital expenditure that does not exceed $100,000 individually or any capital expenditures that exceed $250,000 in the aggregate) are contemplated by Section 5.1(g) of the Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic areaDisclosure Schedule; or (Fvi) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under with respect to any matter set forth in this Section 5.1.55.1(g);
(i) hire any additional employees, except to fill current vacancies or vacancies arising after the date of this Agreement and only if the expected total annual compensation for such person is no greater than $200,000, (ii) make any offers to any executive officer of an employment position, (iii) increase the compensation payable or to become payable or the benefits provided to its present or former directors, employees or executive officers, except for increases in salary or hourly wage rates in the ordinary course of business and consistent with past practice, (iv) grant any new or additional retention, severance or termination pay to, or enter into any new or additional employment, bonus, change of control or severance agreement with, any present or former director, officer or other employee of the Company or of any of its Subsidiaries, (v) establish, adopt, enter into, terminate or amend any Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement, except as required by this Agreement or the Merger contemplated hereby, or as required by ERISA, the Code or to otherwise comply with applicable Law, (vi) loan or advance money or other property to any current or former director, officer or employee of the Company or any of its Subsidiaries or (vii) grant any equity or equity based awards (provided that equity awards may be transferred in accordance with the applicable plan document or agreement);
(i) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the WARN Act (determined without regard to terminations of employment occurring on or after the Effective Time);
(j) take any action, other than actions required to be taken in response to changes in GAAP or in Law after the date hereof, to change any accounting policies or procedures used by it (including procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable);
(k) make, revoke or change any material Tax election or material method of Tax accounting, change any annual Tax accounting period, file any amended Tax Return (unless required by Law), enter into any closing agreement relating to a material amount of Taxes, settle or compromise any material liability with respect to Taxes or consent to any material claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $250,000 in any individual case or $500,000 in the aggregate, other than (i) in the ordinary course of business and consistent with past practice, or (ii) liabilities reflected or reserved against in the financial statements contained in the Company SEC Reports and such payment, discharge or satisfaction is made in accordance with the terms of such claim, liability or obligation as such terms exist on the date of this Agreement;
(m) pay accounts payable, utilize cash, draw down on lines of credit, delay or accelerate capital expenditures, incur expenditures on research and development, other than in the ordinary course of business and consistent with past practice;
(n) amend or modify in any material respect, or consent to the termination of, any Material Contract, or amend, waive or modify in any material respect, or consent to the termination of, the Company’s or any Subsidiary’s rights thereunder;
(o) (i) abandon, sell, assign, or grant any security interest in or to any item of the Owned Intellectual Property, Licensed Intellectual Property or IP Agreements, (ii) grant to any third party any license, sublicense or covenant not to sxx with respect to any Owned Intellectual Property or Licensed Intellectual Property, other than in the ordinary course of business consistent with past practice, (iii) develop, create or invent any Intellectual Property jointly with any third party (other than such joint development, creation or invention with a third party that is under contract, in progress or currently contemplated as of the date hereof), (iv) disclose, or allow to be disclosed, any confidential Owned Intellectual Property, unless such Owned Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against the further disclosure thereof, or (v) fail to perform or cause to be performed all applicable filings, recordings and other acts, and pay or caused to be paid all required fees and taxes, to maintain and protect its interest in each item of the Owned Intellectual Property and the Licensed Intellectual Property, except for those items shown in Section 3.12(a) of the Company Disclosure Schedule as abandoned;
(p) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(q) enter into any contract or agreement with any director or officer of the Company or any Subsidiary or any of their respective affiliates (including any immediate family member of such person) or any other affiliate of the Company or any Subsidiary;
(r) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger and the Transactions) except for any such matters that occur with respect to any of the Subsidiaries listed on Schedule 5.1(r));
(s) open any office in a new geographical territory, create any new business division or otherwise enter into any new line of business;
(t) fail to continuously maintain in full force and effect its current Insurance Policies; or
(u) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company Pending the Effective Time. (a) The Company agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted by any other provision Sections 2.5, 2.6, 5.1(b), 5.4, 6.1, 6.2 or 6.5 of this Agreement, unless Parent MGPE shall otherwise agree in writing: (a) the business of the Company will, and will cause each Company Subsidiary to, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only shall be conducted in the ordinary and usual course of business consistent with past practice and (Cb) the Company shall use its commercially reasonable best efforts to keep available the services of such of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary in order to preserve substantially intact its business organization. Without limiting the foregoing, By way of amplification and as an extension thereofnot limitation, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by Sections 2.5, 2.6, 5.1(b), 5.4, 6.1, 6.2 or contemplated by any other provision 6.5 of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary to, Laws) between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of ParentMGPE:
Section 5.1.1 (i) amend or otherwise change its certificate Certificate of incorporation Incorporation or byBy-laws or equivalent organizational documentslaws;
Section 5.1.2 (Aii) (1) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer transfer, or encumbrance of any shares of capital stock of, or other Equity Interests equity interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interestsequity interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests equity interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract rightphantom interest), of the Company or any Company SubsidiaryCompany, other than the issuance of Shares Company Common Stock upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, terms or in accordance with the terms of Section 5.1(b) below or (B2) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000Company;
Section 5.1.3 (iii) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or a combination thereof) otherwise, with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
Section 5.1.4 (iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 (A1) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization, person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (B2) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed money, except pursuant to the agreements on the date hereof that are set forth in Section 5.1 of the Company Disclosure Schedule; (C3) terminate, cancel or request any material change in, or agree to any material change in, any Company Material ContractContract other than in the ordinary course of business; (D4) make or authorize any capital expenditure expenditures in excess of the Company’s budget as disclosed to Parent prior to the date hereof; $25,000 (E) enter into excluding any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing outstanding capital expenditure commitments set forth in any line of business in any geographic areaSection 3.21); or (F5) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.55.1;
(vi) except as may be required by contractual commitments with respect to severance or termination pay in existence on the date hereof as disclosed in Section 3.9 of the Company Disclosure Schedule: (1) increase the compensation payable or to become payable to its officers or employees (except for increases in accordance with past practices in salaries or wages of employees of the Company which are not across-the-board increases), (2) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any 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, except to the extent required by applicable Law or the terms of a collective bargaining agreement or (3) take any affirmative action to accelerate the vesting of any stock-based compensation;
(vii) make any change in accounting policies or procedures except as required by GAAP or by a Governmental Entity;
(viii) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(ix) make any material Tax election, change any existing procedure or practice with respect to filing and preparing its Tax return or settle or compromise any material federal, state or local Tax liability;
(x) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party;
(xi) write up, write down or write off the book value of any assets, individually or in the aggregate, in excess of $25,000 except for depreciation and amortization in accordance with GAAP consistently applied or any adjustment that GAAP may require;
(xii) take any action to exempt or make not subject to (1) the provisions of Section 203 of the DGCL, or (2) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares or any person or entity (other than MGPE or its subsidiaries) or any action taken thereby, which person, entity or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(xiii) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except, in every case, as may be required by applicable Law; or
(xiv) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.
(b) The Company shall be permitted to grant Company Options under the Company Stock Option Plan to employees first employed by the Company between the date of the Agreement and the Effective Time in such amounts and containing such economic terms as reasonably determined by the Company and as reasonably approved by MGPE (which approval shall not be unreasonably withheld), it being understood that such Company Options shall not be included in the calculation of Company Fully-Diluted Common Stock for the purpose of Section 2.01(a) hereof.
Appears in 1 contract
Samples: Merger Agreement (Mangapets, Inc.)
Conduct of Business by the Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 7.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: , the Company will, and will cause each Company Subsidiary to, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (CB) use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons Persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 7.1 of the Company Disclosure Schedule or as specifically permitted or contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the CompanyLaw), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
Section 5.1.1 7.1.1 amend or otherwise change its certificate articles of incorporation or by-laws bylaws or equivalent organizational documents;
Section 5.1.2 7.1.2 (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale sale, lease, rental or purchase of goods Inventory in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments (C) enter into any commitment or expenses (direct, contingent or otherwise) in excess transaction outside the ordinary course of $100,000;business consistent with past practice:
Section 5.1.3 7.1.3 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
Section 5.1.4 7.1.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 7.1.5 (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person Person or any division thereof or any assets, other than acquisitions of assets Inventory in the ordinary course of business consistent with past practice; practice and any other acquisitions for consideration that is individually not in excess of Twenty-Five Thousand Dollars ($25,000), or in the aggregate not in excess of Fifty Thousand Dollars ($50,000), for the Company and the Company Subsidiaries taken as a whole, (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person Person (other than a wholly-owned Company Subsidiary) for borrowed money; , except for indebtedness for borrowed money incurred in the ordinary course of business under the Company’s existing line of credit with Bank of America, N.A., (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; Contract other than in the ordinary course of business consistent with past practice, (D) make or authorize any capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof; , other than capital expenditures that are not in excess of One Hundred Thousand Dollars ($100,000) in the aggregate for the Company and the Company Subsidiaries taken as a whole, or (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; or (F) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.57.1.5;
Section 7.1.6 except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 4.11 of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or key employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other key employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any 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 key employee, except to the extent required by applicable Law; (C) make any bonus or similar payments, except that the Company may pay the Management Bonus and the Carveout Plan Termination Payment in accordance with Section 7.1.6 of the Company Disclosure Schedule; or
Appears in 1 contract
Samples: Merger Agreement (Guitar Center Inc)
Conduct of Business by the Company Pending the Effective Time. The (a) Except as (1) Parent shall otherwise consent (such consent not to be unreasonably withheld, conditioned or delayed); (2) such action is expressly permitted or required pursuant to this Agreement or listed on Section 5.1 of the Company agrees thatDisclosure Letter; or (3) required by any applicable Law or Judgment, between the date of this Agreement and the Effective Time, except as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: the Company willshall, and will shall cause each Company Subsidiary its Subsidiaries to, (Ai) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only business in the ordinary and usual course Ordinary Course of business consistent with past practice Business; and (Cii) use its commercially reasonable efforts to keep available maintain and preserve intact the material aspects of their business organizations, to maintain their business relationships and goodwill with suppliers, contractors, distributors, customers, partners, employees, licensors, licensees and others having material business relationships with the Company or its Subsidiaries, to retain the services of the current officers, key employees and consultants business associates and agents of the Company and each its Subsidiaries and to comply in all material respects with all applicable Laws and the requirements of all Company Subsidiary Material Contracts.
(b) Without limiting the generality of the foregoing Section 5.1(a), and preserve the current relationships except as (1) Parent shall otherwise consent (such consent not to be unreasonably withheld, conditioned or delayed); (2) such action is expressly permitted or required pursuant to this Agreement or listed on Section 5.1 of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company Disclosure Letter; or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as specifically permitted or contemplated (3) required by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary toJudgment, between the date of this Agreement and the Effective Time, the Company shall not, and shall cause its Subsidiaries not, to do any of the following:
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), in one transaction or any series of related transactions, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
Section 5.1.1 amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents;
Section 5.1.2 (A) issueany assets, sellproperties, pledge, dispose of, grant, transfer, encumberrights, or authorize interests (other than, (i) for all acquisitions outside of the issuancevascular intervention business, salein the Ordinary Course of Business, pledge, disposition, grant, transfer or encumbrance of any shares of capital stock of, or other Equity Interests inand (ii) with respect to the vascular intervention business, the Company purchase or any Company Subsidiary acquisition of any classoff-the-shelf software, or securities convertible or exchangeable or exercisable for any shares inventory, supplies and materials in the Ordinary Course of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract rightBusiness), of the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Warrants outstanding as of the date hereof in accordance with their terms, (B) securities (other than Permitted Investments or other marketable securities), or (C) any businesses.
(ii) sell, pledge, dispose of, transferassign, lease, license, guarantee or encumber, or authorize the salemortgage, pledge, dispositionsurrender, transferencumber, leasedivest, licensecancel, guarantee abandon or encumbrance allow to lapse or expire (or take any action that would reasonably be likely to result in a cancellation, abandonment or lapse of), transfer or dispose of, or create or incur any material property or Lien (other than Permitted Liens) on, any of the assets (including the Owned Intellectual Property), securities (other than Permitted Investments or other marketable securities), properties, rights, interests or businesses (other than any sale, lease or license of inventory or non-exclusive licenses to the Owned Intellectual Property, in each case in the Ordinary Course of Business) of the Company or any of its Subsidiaries; (iii) amend or propose to amend the Company Subsidiary, except pursuant Charter Documents or materially amend or propose to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000;
Section 5.1.3 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to materially amend any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
Section 5.1.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations organizational documents of any person (other than a wholly-owned Company Subsidiary) for borrowed money; (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; (D) make or authorize any capital expenditure in excess Subsidiary of the Company’s budget as disclosed to Parent prior to the date hereof; (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; or (F) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.5;
Appears in 1 contract
Samples: Merger Agreement (Surmodics Inc)
Conduct of Business by the Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: , the Company will, and will cause each Company Subsidiary to, (A) maintain its existence in good standing under applicable Laws, (B) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (CB) use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organizationorganization as currently conducted. Without limiting the foregoing, and as an extension thereof, except as specifically permitted or contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the CompanyLaw), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
Section 5.1.1 amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documentsbylaws;
Section 5.1.2 (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company SubsidiaryCompany, other than the issuance of Shares Company Common Stock and/or Company Warrants upon the exercise of Company Options or Warrants outstanding as of the date hereof of this Agreement in accordance with their terms, terms or (B) ), sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company SubsidiaryCompany, except pursuant to existing contracts or commitments or the sale or purchase of goods or the licensing of Intellectual Property in the ordinary course of business consistent with past practice, or enter into any commitment or transaction or series of commitments or transactions outside the ordinary course of business consistent with past practice or involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $100,000practice;
Section 5.1.3 declare, set aside, make or pay any dividend or other similar distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
Section 5.1.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities;
Section 5.1. 5 5.1.5 (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; , (B) incur any indebtedness for borrowed money Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed money; person, (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; , (D) make or authorize any capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof; of this Agreement or (E) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any of their affiliates or any successor thereto or that could, after the Effective Time, limit or restrict Parent or any affiliate (including the Surviving Corporation) or any successor thereto from engaging or competing in any line of business in any geographic area; or (F) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.5;
Section 5.1.6 Except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.10.4 of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in compensation or benefits in accordance with past practices and in the ordinary course of business); (B) grant any rights to severance or termination pay to, or enter into any agreement with respect to employment, severance or termination pay or benefits with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, compensation, stock option, restricted stock, severance or similar plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan.
Section 5.1. 7 pre-pay any Indebtedness or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms;
Section 5.1.8 make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity;
Section 5.1.9 waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
Section 5.1.10 make any material tax election or settle or compromise any material liability for Taxes;
Section 5.1.11 take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
Section 5.1.12 modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party;
Section 5.1.13 write up, write down or write off the book value of any assets, except for depreciation and amortization in accordance with GAAP consistently applied;
Section 5.1.14 take any action to exempt or make not subject to (A) the provisions of Section 203 of Delaware Law or (B) any other state takeover Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any person or entity (other than Parent, Merger Sub or any Parent Subsidiary) or any action taken thereby, which person, entity or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
Section 5.1.15 take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 6 not being satisfied; or
Section 5.1.16 authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Tegal Corp /De/)
