Conduct of Business by the Company Prior to Closing. Except as otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Company Disclosure Letter, or as required by Applicable Law, or to the extent that Parent shall otherwise consent in writing, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in material compliance with all Applicable Laws, pay its debts and Taxes when due, pay or perform other material obligations when due, and use commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its present executive officers and Employees and consultants, and preserve its relationships with its Employees, consultants, customers, suppliers, licensors, licensees, lessors and others with which it has significant business dealings. The Company also shall as promptly as reasonably practicable notify in writing Parent of any event or condition which could reasonably be expected to lead to a Company Material Adverse Effect. Without limiting the generality of the foregoing and subject to the exceptions set forth in Section 5.1 of the Company Disclosure Letter, without the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed), during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall not do any of the following: (a) Enter into any new line of business material to the Company; (b) Declare, set aside or pay any dividends on or make any other distributions in respect of any capital stock, or combine, split or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (c) Authorize for issuance, issue, deliver, sell, pledge or otherwise encumber (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights (including stock appreciation rights or phantom stock rights), rights to purchase or otherwise) any securities of the Company or rights to acquire such securities, or enter into any other agreements or commitments of any character obligating it to issue any such securities or rights, or enter into any amendment of any term of any currently outstanding securities of the Company or rights to acquire such securities; (d) Purchase, redeem or otherwise acquire or offer to redeem, purchase, or otherwise acquire, directly or indirectly, any securities of the Company; (e) Cause, permit or propose to adopt any amendments to Company Charter Documents; (f) Adopt or implement any stockholder rights plan, “poison pill,” or other anti-takeover plan, arrangement or mechanism that, in each case, is applicable to Parent or Merger Subsidiary or the transactions contemplated by this Agreement; (g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity or voting interest in or purchasing a material portion or all of the assets of, or by any other manner, any business or any Person or any division thereof, or otherwise acquire or agree to acquire any assets that are or are expected to be material, individually or in the aggregate, to the business of the Company, or solicit or participate in any negotiations with respect to any of the foregoing; (h) Enter into, modify or amend in a manner materially adverse to the Company, or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder, in each case, in a manner materially adverse to the Company; (i) Enter into any binding agreement, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance; (j) Sell, lease, license, mortgage, pledge, encumber or otherwise dispose of any properties or assets except for the sale, lease, license, encumbrance or disposition of property or assets that are not material, individually or in the aggregate, to the business of the Company, in each case, in the ordinary course of business and in a manner consistent with past practices, including with respect to the terms and conditions of any such sale, lease, license, encumbrance or other disposition; (k) With the exception of the Merger, adopt a plan of complete or partial liquidation dissolution, merger, consolidation, recapitalization, reorganization, or other restructuring of the Company, or organize or form any subsidiary or similar entity over which the Company shall have control; (l) Except as required by this Agreement, incur, assume or prepay any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, any such indebtedness of another Person, guarantee any debt securities of another Person, or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practices; (m) Make any payments, loans, extensions of credit or financing, advances or capital contributions to, or investments in, any other Person, other than (i) employee loans, advances, or payments for bona fide travel and entertainment expenses reimbursement made in the ordinary course of business consistent with past practices or (ii) extensions of credit or financing to, or extended payment terms for, customers made in the ordinary course of business consistent with past practices; (n) Sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any contract, arrangement or understanding with or on behalf of, any officer, director or employee of the Company or any Affiliate of any of the Company, or any business entity in which the Company or any such Affiliate, or any relative of any such Person, has any material, direct or indirect interest; (o) Commit any capital expenditure or expenditures in excess of $10,000 in the aggregate above the capital expenditures set forth in the Company’s fiscal 2007 budget forecasts. (p) Except as required by changes in GAAP or Applicable Law requirements, and as concurred by Parent’s independent auditors, (i) make any change in the Company’s methods or principles of accounting or (ii) revalue any of the Company’s assets, including writing down the value of inventory or writing-off notes or accounts receivable; (i) Fail to file on a timely basis, including allowable extensions, with the appropriate Governmental Authorities, all Tax Returns required to be filed, (ii) fail to timely pay or remit (or cause to be paid or remitted) any Taxes due in respect of such Tax Returns, (iii) adopt or change any accounting method in respect of Taxes, (iv) enter into any agreement or arrangement, or settle or compromise any claim or assessment in respect of, Taxes, or make or change any election with respect to Taxes, (v) file any amended Tax Return or (vi) consent to any extension or waiver of the statutory period of limitations period applicable to any claim or assessment in respect of Taxes; (r) Commence, settle or compromise any pending or threatened Legal Proceeding, or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability, obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise) by or against the Company or relating to any of its businesses, properties or assets (whether real, personal or mixed, tangible or intangible), other than the settlement, compromise, payment, discharge or satisfaction of Legal Proceedings, claims or other Liabilities (i) reflected or reserved against in full in the Company Financials or (ii) the settlement, compromise, discharge or satisfaction of which does not include any obligation (other than the payment of money) to be performed by the Company following the Effective Time and that does not involve the payment, individually or in the aggregate, of an amount exceeding $10,000; (s) Except as required by Applicable Law or any contract or agreement currently binding on the Company, (i) adopt, amend, modify, or increase in any manner the amount of compensation or fringe benefits of, pay or grant any bonus, change of control, severance or termination pay to any officer, Employee or director of the Company, (ii) adopt or amend in any manner, any Company Benefit Plan, including without limitation the Company Rights Plan, (iii) fail to make any required contribution to any Company Benefit Plan, (iv) make any contribution, other than regularly scheduled contributions, to any Company Benefit Plan, (v) authorize cash payments in exchange for any benefits or Rights, (vi) allocate bonus awards under a Company Benefit Plan in a manner or amount not consistent with past practices, (vii) enter into or amend any employment agreement, arrangement or understanding with any Employee or director or any indemnification agreement or arrangement with any Employee or director, (viii) enter into any collective bargaining or amend or extend any existing collective bargaining agreement, or (ix) hire any employees or retain any consultant other than in the ordinary course of business consistent with past practices or hire, elect or appoint any officers or directors; (i) Grant any exclusive rights with respect to any Company Intellectual Property, (ii) divest any Company Intellectual Property, except if such divestiture or divestures, individually or in the aggregate, are not material to the Company, (iii) enter into any material contract, agreement or license that adversely affects, or could reasonably be expected to adversely affect, any patents or applications therefor, in each case, of the Company or any Affiliate of the Company, or (iv) abandon or permit to lapse any rights to any United States patent or patent application; (u) Enter into any contract, agreement, arrangement or understanding with a customer that contains any material non-standard terms, including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements or future royalty payments, other than as is consistent with past practices; (v) Enter into any contract, arrangement or understanding to do any of the foregoing or authorize, recommend, take, commit, or agree in writing or otherwise to take, or announce an intention to take, any of the actions described in this Section 5.1, or any other action that results or is reasonably likely to (i) result in any of the conditions to the Merger set forth in Article VII hereof not being satisfied, (ii) result in any representation or warranty of the Company contained in this Agreement that is qualified as to materiality becoming untrue or incorrect or any representation or warranty not so qualified becoming untrue or incorrect in any material respect (provided that representations made as of a specific date shall be required to be so true and correct, subject to qualifications, as of such date only), (iii) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder, or (iv) otherwise materially impair the ability of the Company to consummate the transactions contemplated hereby in accordance with the terms hereof or materially delay such consummation; or (w) Take, or agree or fail to take, any action that would reasonably be expected to cause the Merger to fail to qualify as a reorganization pursuant to Section 368(a) of the Code.
Appears in 1 contract
Conduct of Business by the Company Prior to Closing. Except as otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Company Disclosure Letter, or as required by Applicable Law, or to the extent that Parent and BV Sub shall otherwise consent in writing, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in material compliance with all Applicable Laws, pay its debts and Taxes when due, pay or perform other material obligations when due, and use commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its present executive officers and Employees and consultants, and preserve its relationships with its Employees, consultants, customers, suppliers, licensors, licensees, lessors and others with which it has significant business dealings. The Company also shall as promptly as reasonably practicable notify in writing Parent and BV Sub of any event or condition which could reasonably be expected to lead to a Company Material Adverse Effect. Without limiting the generality of the foregoing and subject to the exceptions set forth in Section 5.1 of the Company Disclosure Letterforegoing, without the prior written consent of Parent and BV Sub (which consent shall not be unreasonably withheld or delayed), during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall not do any of the following:
(a) Enter into any new line of business material to the Company;
(b) Declare, set aside or pay any dividends on or make any other distributions in respect of any capital stock, or combine, split or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(c) Authorize for issuance, issue, deliver, sell, pledge or otherwise encumber (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights (including stock appreciation rights or phantom stock rights), rights to purchase or otherwise) any securities of the Company or rights to acquire such securities, or enter into any other agreements or commitments of any character obligating it to issue any such securities or rights, or enter into any amendment of any term of any currently outstanding securities of the Company or rights to acquire such securities;
(d) Purchase, redeem or otherwise acquire or offer to redeem, purchase, or otherwise acquire, directly or indirectly, any securities of the Company;
(e) Cause, permit or propose to adopt any amendments to Company Charter Documents;
(f) Adopt or implement any stockholder rights plan, “poison pill,” or other anti-takeover plan, arrangement or mechanism that, in each case, is applicable to Parent or Merger Subsidiary or the transactions contemplated by this Agreement;
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity or voting interest in or purchasing a material portion or all of the assets of, or by any other manner, any business or any Person or any division thereof, or otherwise acquire or agree to acquire any assets that are or are expected to be material, individually or in the aggregate, to the business of the Company, or solicit or participate in any negotiations with respect to any of the foregoing;
(h) Enter into, modify or amend in a manner materially adverse to the Company, or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder, in each case, in a manner materially adverse to the Company;
(i) Enter into any binding agreement, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(j) Sell, lease, license, mortgage, pledge, encumber or otherwise dispose of any properties or assets except for the sale, lease, license, encumbrance or disposition of property or assets that are not material, individually or in the aggregate, to the business of the Company, in each case, in the ordinary course of business and in a manner consistent with past practices, including with respect to the terms and conditions of any such sale, lease, license, encumbrance or other disposition;
(k) With the exception of the Merger, adopt a plan of complete or partial liquidation dissolution, merger, consolidation, recapitalization, reorganization, or other restructuring of the Company, or organize or form any subsidiary or similar entity over which the Company shall have control;
(l) Except as required by this Agreement, incur, assume or prepay any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, any such indebtedness of another Person, guarantee any debt securities of another Person, or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with issuances of Company Common Stock upon the financing exercise of ordinary course trade payables consistent with past practices;
(m) Make any payments, loans, extensions of credit Company Options or financing, advances or capital contributions to, or investments in, any other Person, other than (i) employee loans, advances, or payments for bona fide travel and entertainment expenses reimbursement made in the ordinary course of business consistent with past practices or (ii) extensions of credit or financing to, or extended payment terms for, customers made in the ordinary course of business consistent with past practices;
(n) Sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any contract, arrangement or understanding with or on behalf of, any officer, director or employee of the Company or any Affiliate of any of the Company, or any business entity in which the Company or any such Affiliate, or any relative of any such Person, has any material, direct or indirect interest;
(o) Commit any capital expenditure or expenditures in excess of $10,000 in the aggregate above the capital expenditures set forth in the Company’s fiscal 2007 budget forecasts.
(p) Except as required by changes in GAAP or Applicable Law requirements, and as concurred by Parent’s independent auditors, (i) make any change in the Company’s methods or principles of accounting or (ii) revalue any of the Company’s assets, including writing down the value of inventory or writing-off notes or accounts receivable;
(i) Fail to file on a timely basis, including allowable extensions, with the appropriate Governmental Authorities, all Tax Returns required to be filed, (ii) fail to timely pay or remit (or cause to be paid or remitted) any Taxes due in respect of such Tax Returns, (iii) adopt or change any accounting method in respect of Taxes, (iv) enter into any agreement or arrangement, or settle or compromise any claim or assessment in respect of, Taxes, or make or change any election with respect to Taxes, (v) file any amended Tax Return or (vi) consent to any extension or waiver of the statutory period of limitations period applicable to any claim or assessment in respect of Taxes;
(r) Commence, settle or compromise any pending or threatened Legal Proceeding, or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability, obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise) by or against the Company or relating to any of its businesses, properties or assets (whether real, personal or mixed, tangible or intangible), other than the settlement, compromise, payment, discharge or satisfaction of Legal Proceedings, claims or other Liabilities (i) reflected or reserved against in full in the Company Financials or (ii) the settlement, compromise, discharge or satisfaction of which does not include any obligation (other than the payment of money) to be performed by the Company following the Effective Time and that does not involve the payment, individually or in the aggregate, of an amount exceeding $10,000;
(s) Except as required by Applicable Law or any contract or agreement currently binding Warrants existing on the Company, (i) adopt, amend, modify, or increase in any manner the amount of compensation or fringe benefits of, pay or grant any bonus, change of control, severance or termination pay to any officer, Employee or director of the Company, (ii) adopt or amend in any manner, any Company Benefit Plan, including without limitation the Company Rights Plan, (iii) fail to make any required contribution to any Company Benefit Plan, (iv) make any contribution, other than regularly scheduled contributions, to any Company Benefit Plan, (v) authorize cash payments in exchange for any benefits or Rights, (vi) allocate bonus awards under a Company Benefit Plan in a manner or amount not consistent with past practices, (vii) enter into or amend any employment agreement, arrangement or understanding with any Employee or director or any indemnification agreement or arrangement with any Employee or director, (viii) enter into any collective bargaining or amend or extend any existing collective bargaining agreement, or (ix) hire any employees or retain any consultant other than in the ordinary course of business consistent with past practices or hire, elect or appoint any officers or directors;
(i) Grant any exclusive rights with respect to any Company Intellectual Property, (ii) divest any Company Intellectual Property, except if such divestiture or divestures, individually or in the aggregate, are not material to the Company, (iii) enter into any material contract, agreement or license that adversely affects, or could reasonably be expected to adversely affect, any patents or applications therefor, in each case, of the Company or any Affiliate of the Company, or (iv) abandon or permit to lapse any rights to any United States patent or patent application;
(u) Enter into any contract, agreement, arrangement or understanding with a customer that contains any material non-standard terms, including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements or future royalty payments, other than as is consistent with past practices;
(v) Enter into any contract, arrangement or understanding to do any of the foregoing or authorize, recommend, take, commit, or agree in writing or otherwise to take, or announce an intention to take, any of the actions described in this Section 5.1, or any other action that results or is reasonably likely to (i) result in any of the conditions to the Merger set forth in Article VII date hereof not being satisfied, (ii) result in any representation or warranty of the Company contained in this Agreement that is qualified as to materiality becoming untrue or incorrect or any representation or warranty not so qualified becoming untrue or incorrect in any material respect (provided that representations made as of a specific date shall be required to be so true and correct, subject to qualifications, as of such date only), (iii) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder, or (iv) otherwise materially impair the ability of the Company to consummate the transactions contemplated hereby in accordance with the terms hereof or materially delay such consummation; or
(w) Take, or agree or fail to take, any action that would reasonably be expected to cause the Merger to fail to qualify as a reorganization pursuant to Section 368(a) of the Code.their present terms;
Appears in 1 contract
Samples: Merger Agreement (Navteq Corp)
Conduct of Business by the Company Prior to Closing. Except as otherwise expressly contemplated by this Agreement, as set forth in Section 5.1 of the Company Disclosure Letter, or as required by Applicable Law, or Prior to the extent that Parent Closing, unless Buyer shall otherwise consent agree in writing, during the period from Business shall be conducted in and only in, and Seller shall not permit the date hereof and continuing until the earlier of the termination of this Agreement pursuant Company to Article VIII or the Effective Timetake any action except in, the Company Ordinary Course of Business; and Seller shall carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in material compliance with all Applicable Laws, pay its debts and Taxes when due, pay or perform other material obligations when due, and use commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present the business organizationorganization of the Company, to keep available the services of its present executive officers the current officers, employees, consultants and Employees contractors of the Company and consultantsto preserve the current relationships of the Company with, and preserve its relationships with its Employees, consultantsthe goodwill of, customers, suppliers, licensors, licensees, lessors suppliers and others other Persons with which it the Company has significant business dealingsrelations. The Company also Seller shall as promptly as reasonably practicable notify not (in writing Parent of any event or condition which could reasonably be expected to lead to a Company Material Adverse Effect. Without limiting the generality respect of the foregoing Business), and subject shall not permit the Company to, between the date of this Agreement and the Closing, directly or indirectly do, or propose to the exceptions set forth in Section 5.1 do, any of the Company Disclosure Letter, following without the prior written consent of Parent (Buyer, which consent shall will not be unreasonably withheld withheld, conditioned or delayed), during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall not do any of the following:
(a) Enter into (i) amend or otherwise change its Governing Documents, (ii) create any new line Subsidiary of business material to the Company or (iii) file a petition in bankruptcy under any provision of federal or state bankruptcy Law on behalf of Seller or the Company;
(b) Declareissue, set aside sell, contract to issue or pay sell, pledge, dispose of, grant, encumber or create any dividends Lien on (i) any equity interest of the Company, (ii) any Equity Purchase Right or make any other distributions revenue or profit-sharing interest in respect of any capital stockthe Company, or combine, split or reclassify (iii) any capital stock or issue or authorize material assets of the issuance of any Company (other securities in respect ofthan, in lieu the case of or in substitution for this clause (iii), any capital stockPermitted Liens);
(c) Authorize for issuancereclassify, issuecombine, deliversplit, sellsubdivide, pledge or otherwise encumber (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights (including stock appreciation rights or phantom stock rights), rights to purchase or otherwise) any securities of the Company or rights to acquire such securities, or enter into any other agreements or commitments of any character obligating it to issue any such securities or rights, or enter into any amendment of any term of any currently outstanding securities of the Company or rights to acquire such securities;
(d) Purchase, redeem or otherwise acquire or offer to redeem, purchase, purchase or otherwise acquire, directly or indirectly, any securities equity interests of the Company;
(e) CauseCompany or declare, permit set aside or propose to adopt pay any amendments to Company Charter Documents;
(f) Adopt distribution payable in stock or implement any stockholder rights plan, “poison pill,” or other anti-takeover plan, arrangement or mechanism that, in each case, is applicable to Parent or Merger Subsidiary or the transactions contemplated by this Agreement;
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity or voting interest in or purchasing a material portion or all of the assets of, or by any other manner, any business or any Person or any division thereof, or otherwise acquire or agree to acquire any assets that are or are expected to be material, individually or in the aggregate, to the business of the Company, or solicit or participate in any negotiations with respect to any of the foregoing;
(h) Enter into, modify or amend in a manner materially adverse to the Company, or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder, in each case, in a manner materially adverse to the Company;
(i) Enter into any binding agreement, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(j) Sell, lease, license, mortgage, pledge, encumber or otherwise dispose of any properties or assets except for the sale, lease, license, encumbrance or disposition of property or assets that are not material, individually or in the aggregate, to the business of the Company, in each case, in the ordinary course of business and in a manner consistent with past practices, including with respect to the terms and conditions equity interests of any such salethe Company; provided, lease, license, encumbrance or other dispositionthat nothing in this Agreement shall prohibit the Company from making distributions in cash prior to the Closing;
(kd) With the exception of the Merger, adopt a plan of complete or partial liquidation dissolution, (i) acquire (including by merger, consolidationconsolidation or acquisition of stock or assets) any corporation, recapitalizationpartnership, reorganization, other business organization or division thereof or any other restructuring of the Company, Person or organize make any capital contributions or form investments in any subsidiary or similar entity over which the Company shall have control;
Person; (lii) Except as required by this Agreement, incur, assume or prepay incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, any such indebtedness of another Person, guarantee issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of another any Person, or make any loans or advances, except in the Ordinary Course of Business; (iii) enter into any Contract that would be characterized as a Material Contract if such Contract was in place as of the date hereof or terminate or make any material amendment, extension, acceleration or waiver under any Material Contract (excluding any termination of a Material Contract in accordance with its terms); (iv) authorize any single capital expenditure which is in excess of $100,000 or any group of capital expenditures which are, in the aggregate, in excess of $500,000 for the Company other than capital expenditures incurred for design, development and implementation in the Ordinary Course under a Contract made available to Buyer or capital expenditures, including labor costs, incurred for general software enhancements in the Ordinary Course of Business; (v) license any of its Owned Intellectual Property or any of its other material Intellectual Property rights, in each case, other than non-exclusive licenses in the Ordinary Course of Business; or (vi) enter into or amend any contract, agreement, commitment or arrangement having with respect to any matter set forth in this Section 6.1(d);
(e) other than as required by applicable Law, the economic effect terms of any Plan as in effect on the date hereof or the express terms of this Agreement, (i) enter into or amend any employment, consulting or agency agreement that provides for severance obligations; (ii) increase the compensation or benefits payable or to become payable to any Business Employee; (iii) grant any severance or termination pay to, or establish, adopt, enter into or amend any Plan, collective bargaining, bonus, profit-sharing, thrift, compensation, interest option, restricted interest, pension, retirement, deferred compensation, employment, termination, severance, benefit, change in control, retention, loan or other plan, agreement, trust, fund, policy, contract or arrangement for the benefit of any Business Employee; (iv) accelerate the vesting, payment, or funding of any compensation or benefit under any Plan with respect to any Business Employee or under any Company Plan or (v) transfer the employment or engagement, or modify the employment or engagement status, of any service provider of Seller or its Affiliates (including the Company) in a manner that could affect whether or not such Person remains an employee or service provider of the foregoingCompany following the Closing;
(f) take any action, other than in connection the Ordinary Course of Business, with respect to accounting methods, policies or procedures (including procedures with respect to the financing payment of ordinary course trade payables consistent with past practices;
(m) Make any paymentsaccounts payable and collection of accounts receivable), loans, extensions of credit or financing, advances or capital contributions to, or investments in, any other Person, other than including (i) employee loansany acceleration, advances, write off or payments for bona fide travel and entertainment expenses reimbursement made in the ordinary course discount any collection of business consistent with past practices notes or (ii) extensions of credit or financing to, or extended payment terms for, customers made in the ordinary course of business consistent with past practices;
(n) Sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any contract, arrangement or understanding with or on behalf of, any officer, director or employee of the Company or any Affiliate of any accounts receivable of the Company, (ii) any delay in paying any payables or other liabilities when due or deferred expenses and (iii) any business entity in which the Company delay or any such Affiliate, or any relative postponement of any such Personcapital expenditures, has including in respect of the design, development and implementation under any material, direct or indirect interest;
(o) Commit any capital expenditure or expenditures in excess of $10,000 in the aggregate above the capital expenditures set forth in the Company’s fiscal 2007 budget forecastsContract.
(pg) Except as required by changes in GAAP or Applicable Law requirements, and as concurred by Parent’s independent auditors, (i) make any change in the Company’s methods or principles of accounting or (ii) revalue any of the Company’s assets, including writing down the value of inventory or writing-off notes or accounts receivable;
(i) Fail to file on a timely basis, including allowable extensions, with the appropriate Governmental Authorities, all Tax Returns required to be filed, (ii) fail to timely pay or remit (or cause to be paid or remitted) any Taxes due in respect of such Tax Returns, (iii) adopt or change any accounting method in respect of Taxes, (iv) enter into any agreement or arrangement, or settle or compromise any claim or assessment in respect of, Taxes, or make or change any election with respect to TaxesTax election, (v) change an annual accounting period, change any accounting method, settle any Tax audit, claim or examination, change any method of accounting or accounting practice for Tax purposes, file any amended Tax Return Return, enter into any closing agreement or (vi) request a Tax ruling from a Governmental Body, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the statutory period of limitations limitation period applicable to any Taxes, Tax Return or claim for Taxes, or make any voluntary Tax disclosure or Tax amnesty claim or assessment filing, except in each case, solely with respect of Taxesto income Taxes for which the Company does not file Tax Returns and is not the taxpayer;
(rh) Commencepay, discharge, settle or compromise any pending or threatened Legal Proceeding, or pay, discharge or satisfy or agree to pay, discharge or satisfy any claimClaim, liability, liability or obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise) by or against the Company enter into any settlement agreement or relating to consent decree with any of its businesses, properties or assets (whether real, personal or mixed, tangible or intangible), other than the settlement, compromise, payment, discharge or satisfaction of Legal Proceedings, claims or other Liabilities Governmental Body (i) reflected or reserved against in full in the Company Financials excess of $250,000 or (ii) the settlement, compromise, discharge that impose any future restrictions or satisfaction of which does not include any obligation (other than the payment of money) to be performed by the Company following the Effective Time and that does not involve the payment, individually or in the aggregate, of an amount exceeding $10,000;
(s) Except as required by Applicable Law or any contract or agreement currently binding requirements on the Company, (i) adopt, amend, modify, or increase in any manner the amount of compensation or fringe benefits of, pay or grant any bonus, change of control, severance or termination pay to any officer, Employee or director of the Company, (ii) adopt or amend in any manner, any Company Benefit Plan, including without limitation the Company Rights Plan, (iii) fail to make any required contribution to any Company Benefit Plan, (iv) make any contribution, other than regularly scheduled contributions, to any Company Benefit Plan, (v) authorize cash payments in exchange for any benefits or Rights, (vi) allocate bonus awards under a Company Benefit Plan in a manner or amount not consistent with past practices, (vii) enter into or amend any employment agreement, arrangement or understanding with any Employee or director or any indemnification agreement or arrangement with any Employee or director, (viii) enter into any collective bargaining or amend or extend any existing collective bargaining agreement, or (ix) hire any employees or retain any consultant other than in the ordinary course of business consistent with past practices or hire, elect or appoint any officers or directors;
(i) Grant any exclusive rights with respect to any Company Intellectual Property, (ii) divest any Company Intellectual Property, except if such divestiture or divestures, individually or in the aggregate, are not material to the Company, (iii) enter into any material contract, agreement new Guarantees other than replacement Guarantees on the same or license that adversely affects, or could reasonably be expected to adversely affect, any patents or applications therefor, in each case, of better terms as the Company or any Affiliate of the Company, or (iv) abandon or permit to lapse any rights to any United States patent or patent applicationexisting Guaranty;
(uj) Enter into disclose any contract, agreement, arrangement trade secrets or understanding with a customer other proprietary and confidential information to any Person that contains is not subject to any material confidentiality or non-standard terms, including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements or future royalty payments, other than as is consistent with past practices;disclosure agreement; or
(vk) Enter into any contract, arrangement or understanding agree to do any of the foregoing or authorizeforegoing. Buyer shall within two (2) business days of the date hereof, recommend, take, commit, or agree designate in writing to Seller one or otherwise more appropriate person(s) located in the United States with the authority to takebind Buyer (it being understood that such designee may be replaced with another person(s) located in the United States with prior notice to Seller) to receive and evaluate requests for consents, or announce an intention waivers, amendments and other actions by Buyer hereunder from Seller and Buyer shall use commercially reasonable efforts to take, cause such designee to respond to any such request as promptly as reasonably practicable after receipt thereof given the nature and substance of the actions described in this Section 5.1, or any other action that results or is reasonably likely to (i) result in any of the conditions to the Merger set forth in Article VII hereof not being satisfied, (ii) result in any representation or warranty of the Company contained in this Agreement that is qualified as to materiality becoming untrue or incorrect or any representation or warranty not so qualified becoming untrue or incorrect in any material respect (provided that representations made as of a specific date shall be required to be so true and correct, subject to qualifications, as of such date only), (iii) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder, or (iv) otherwise materially impair the ability of the Company to consummate the transactions contemplated hereby in accordance with the terms hereof or materially delay such consummation; or
(w) Take, or agree or fail to take, any action that would reasonably be expected to cause the Merger to fail to qualify as a reorganization pursuant to Section 368(a) of the Coderequest.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Molina Healthcare Inc)
Conduct of Business by the Company Prior to Closing. Except During the period from the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement, each of the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve intact in all material respects their present business organizations, goodwill reputation, to keep available the services of their key officers and employees, to maintain their assets and properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with ground lessors, tenants and other occupiers of properties, customers, suppliers, lenders, joint venture partners and others having significant business dealings with them and to comply in all material respects with all laws and orders of all Governmental Entities applicable to them, and the Company shall not, nor permit any Company Subsidiary, except as otherwise expressly contemplated by provided for in this Agreement, or as set forth in Section 5.1 Schedule 5.7 of the Company Disclosure Letter, or as required by Applicable Law, or consented to the extent that Parent shall otherwise consent in writing, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII or the Effective Time, the Company shall carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in material compliance with all Applicable Laws, pay its debts and Taxes when due, pay or perform other material obligations when due, and use commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its present executive officers and Employees and consultants, and preserve its relationships with its Employees, consultants, customers, suppliers, licensors, licensees, lessors and others with which it has significant business dealings. The Company also shall as promptly as reasonably practicable notify in writing Parent of any event or condition which could reasonably be expected to lead to a Company Material Adverse Effect. Without limiting the generality of the foregoing and subject to the exceptions set forth in Section 5.1 of the Company Disclosure Letterby Buyer, without the prior written consent of Parent (which consent shall not be unreasonably withheld withheld, or delayed)as contemplated by the Merger, during the period from Exchange Offer, the date hereof and continuing until the earlier of the termination of this Agreement pursuant to Article VIII Tender Offer or the Effective TimeContemplated Transactions, the Company shall not do any of the followingas applicable:
(a) Enter into incorporate or organize any new line Subsidiary of business material such party, unless such Subsidiary shall be wholly owned, directly or indirectly, by such party and the Buyer shall receive prompt notice of such incorporation or organization, including the information that would have been disclosed pursuant to Article III hereof had such Subsidiary been in existence on the Companydate hereof;
(b) Declareamend or propose to amend the Company's Articles of Incorporation or Bylaws or any of the Company Subsidiaries' Charter Documents or permit the amendment of the Company's Articles of Incorporation or Bylaws or of any Charter Documents of the Company Subsidiaries;
(c) declare, set aside or pay any dividends on or make any other distributions in respect of any capital stock, or combine, split or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(c) Authorize for issuance, issue, deliver, sell, pledge or otherwise encumber (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights (including stock appreciation rights or phantom stock rights), rights to purchase or otherwise) any securities of the Company or rights to acquire such securities, or enter into any other agreements or commitments of any character obligating it to issue any such securities or rights, or enter into any amendment of any term of any currently outstanding securities of the Company or rights to acquire such securities;
(d) Purchase, redeem or otherwise acquire or offer to redeem, purchase, or otherwise acquire, directly or indirectly, any securities of the Company;
(e) Cause, permit or propose to adopt any amendments to Company Charter Documents;
(f) Adopt or implement any stockholder rights plan, “poison pill,” or other anti-takeover plan, arrangement or mechanism that, in each case, is applicable to Parent or Merger Subsidiary or the transactions contemplated by this Agreement;
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity or voting interest in or purchasing a material portion or all of the assets of, or by any other manner, any business or any Person or any division thereof, or otherwise acquire or agree to acquire any assets that are or are expected to be material, individually or in the aggregate, to the business of the Company, or solicit or participate in any negotiations with respect to any of the foregoing;
(h) Enter into, modify or amend in a manner materially adverse to the Company, or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder, in each case, in a manner materially adverse to the Company;
(i) Enter into any binding agreement, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(j) Sell, lease, license, mortgage, pledge, encumber or otherwise dispose of any properties or assets except for the sale, lease, license, encumbrance or disposition of property or assets that are not material, individually or in the aggregate, to the business of the Company, in each case, in the ordinary course of business and in a manner consistent with past practices, including with respect to the terms and conditions of any such sale, lease, license, encumbrance or other disposition;
(k) With the exception of the Merger, adopt a plan of complete or partial liquidation dissolution, merger, consolidation, recapitalization, reorganization, or other restructuring of the Company, or organize or form any subsidiary or similar entity over which the Company shall have control;
(l) Except as required by this Agreement, incur, assume or prepay any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, any such indebtedness of another Person, guarantee any debt securities of another Person, or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practices;
(m) Make any payments, loans, extensions of credit or financing, advances or capital contributions to, or investments in, any other Person, other than (i) employee loans, advances, or payments for bona fide travel and entertainment expenses reimbursement made in the ordinary course of business consistent with past practices or (ii) extensions of credit or financing to, or extended payment terms for, customers made in the ordinary course of business consistent with past practices;
(n) Sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any contract, arrangement or understanding with or on behalf of, any officer, director or employee of the Company or any Affiliate of any of the Company, or any business entity in which the Company or any such Affiliate, or any relative of any such Person, has any material, direct or indirect interest;
(o) Commit any capital expenditure or expenditures in excess of $10,000 in the aggregate above the capital expenditures set forth in the Company’s fiscal 2007 budget forecasts.
(p) Except as required by changes in GAAP or Applicable Law requirements, and as concurred by Parent’s independent auditors, (i) make any change in the Company’s methods or principles of accounting or (ii) revalue any of the Company’s assets, including writing down the value of inventory or writing-off notes or accounts receivable;
(i) Fail to file on a timely basis, including allowable extensions, with the appropriate Governmental Authorities, all Tax Returns required to be filed, (ii) fail to timely pay or remit (or cause to be paid or remitted) any Taxes due in respect of such Tax Returns, (iii) adopt or change any accounting method in respect of Taxes, (iv) enter into any agreement or arrangement, or settle or compromise any claim or assessment in respect of, Taxes, or make or change any election with respect to Taxes, (v) file any amended Tax Return or (vi) consent to any extension or waiver of the statutory period of limitations period applicable to any claim or assessment in respect of Taxes;
(r) Commence, settle or compromise any pending or threatened Legal Proceeding, or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability, obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise) by or against the Company or relating to any of its businesses, properties or assets (whether real, personal or mixed, tangible or intangible), other than the settlement, compromise, payment, discharge or satisfaction of Legal Proceedings, claims or other Liabilities (i) reflected or reserved against in full in the Company Financials or (ii) the settlement, compromise, discharge or satisfaction of which does not include any obligation (other than the payment of money) to be performed by the Company following the Effective Time and that does not involve the payment, individually or in the aggregate, of an amount exceeding $10,000;
(s) Except as required by Applicable Law or any contract or agreement currently binding on the Company, (i) adopt, amend, modify, or increase in any manner the amount of compensation or fringe benefits of, pay or grant any bonus, change of control, severance or termination pay to any officer, Employee or director of the Company, (ii) adopt or amend in any manner, any Company Benefit Plan, including without limitation the Company Rights Plan, (iii) fail to make any required contribution to any Company Benefit Plan, (iv) make any contribution, other than regularly scheduled contributions, to any Company Benefit Plan, (v) authorize cash payments in exchange for any benefits or Rights, (vi) allocate bonus awards under a Company Benefit Plan in a manner or amount not consistent with past practices, (vii) enter into or amend any employment agreement, arrangement or understanding with any Employee or director or any indemnification agreement or arrangement with any Employee or director, (viii) enter into any collective bargaining or amend or extend any existing collective bargaining agreement, or (ix) hire any employees or retain any consultant dividend other than in the ordinary course of business consistent with past practices practice or hiremake any other distribution or payment with respect to any shares of its capital stock, elect directly or appoint indirectly redeem, purchase or otherwise acquire any officers shares of its capital stock or directorscapital stock of any of its Subsidiaries, or make any commitment for any such action;
(d) issue, deliver, sell or otherwise transfer or authorize or propose the issuance, delivery, sale or other transfer of, or permit the Company or any Company Subsidiary to issue, deliver, sell or otherwise transfer, or authorize or propose the issuance, delivery, sale or other transfer of, any shares of capital stock of, or beneficial or other equity interests in, such party or any of its Subsidiaries or Affiliates or any option with respect thereto;
(e) except, with respect to loans or capital contributions to any of the Company Subsidiaries that exist on the date hereof, to the extent (i) required under the express terms of the Company's Charter Documents or Bylaws or any Company Subsidiary's applicable Charter Document or (ii) in the reasonable good faith judgment of the Company, as applicable, necessary under the circumstances to satisfy the current cash needs of the Company or its Subsidiaries provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in (or permit any of such Company Subsidiaries to take any such action with respect to), any person;
(f) acquire (by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner) or permitting the Company or any Company Subsidiary to acquire any business or any corporation, partnership, association or other business organization or division thereof with assets in excess of $25,000,000 or acquire any material assets (other than with respect to the Contemplated Transactions) in an amount which exceeds $30,000,000 in the aggregate;
(g) mortgage or otherwise encumber or subject to any Encumbrance or sell, lease or otherwise dispose of any of its material properties or assets (which, in the case of the Company shall be deemed to include, without limitation, the Company Properties described on Schedule 3.13 of the Disclosure Letter) or assign or encumber the right to receive income, dividends, distributions and the like;
(h) make or agree to make any new capital expenditures in excess of $5,000,000 in the aggregate;
(i) Grant incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until borrowings are made or committed to be borrowed under such arrangements) any exclusive rights with respect indebtedness for borrowed money or guarantee any such indebtedness, or permit to take any Company Intellectual Propertysuch action, other than (i) Project Debt, (ii) divest to meet the current cash needs of the Company and its Subsidiaries business in an aggregate amount not to exceed $25,000,000, to permit the Company to perform its obligations hereunder or (iii) to effect a redemption of indebtedness permitted by clause (j);
(j) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled repayment date with respect to, or waive any right under, or otherwise modify the provisions of, any indebtedness, or guarantee of indebtedness, for borrowed money, or permit the Company or any Company Intellectual PropertySubsidiaries to take any of such actions, other than the redemption of indebtedness substantially from the proceeds of new indebtedness, the provisions of which are not materially less advantageous to the issuer thereof than those of, and the "ALL-IN" cost of which (determined in accordance with sound financial practice) shall not exceed that of, the indebtedness so redeemed;
(k) enter into, adopt, amend in any material respect (except as may be required by applicable law) or terminate any Plan, as the case may be, or grant any options, awards or other benefits or increase compensation, except if such divestiture or divesturesfor normal increases in benefits and compensation in the ordinary course of business consistent with past practice that, individually or in the aggregate, are do not result in a material increase in benefits or compensation expense to the CompanyCompany and the Company Subsidiaries or amend or modify any employment agreement with any officer of the Company and, (iii) enter into taken as a whole, grant any material contractoptions, agreement awards or license that adversely affects, other benefits or could reasonably be expected to adversely affect, any patents or applications therefor, in each case, increase the compensation of the officers of the Company or any Affiliate Company Subsidiary for whom executive compensation disclosure would be required to be made on a proxy statement for an annual meeting under Regulation 14A under the Exchange Act and Item 402 of Regulation S-K promulgated by the SEC (assuming for this purpose that each of the Company and the Company Subsidiaries are subject to such disclosure requirements);
(l) enter into any Contract, or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice or not on an arm's-length basis, or permit any of the Company or any Company Subsidiary to take such actions, with any affiliate of such party other than transactions among the Company and the Company Subsidiaries;
(m) make any change in the lines of business in which the Company and its Subsidiaries participate or are engaged;
(n) enter into any Contract, commitment or arrangement to do or engage in any action the consummation of which would be prohibited by the foregoing;
(o) make any changes in its accounting methods or policies except as required by law, the SEC or generally accepted accounting principles;
(p) fail to maintain and cause its Subsidiaries to maintain insurance in such amounts and against such risks as are customary for companies;
(q) obtain any equity or debt financing (including any private or public offering of the Company's capital stock);
(r) except following an event of default thereunder, enter into any voluntary termination of a Lease material to the shopping center to which such Lease pertains, unless such Lease is promptly replaced by a lease with equal or greater value (ivincluding rent, term and quality of tenant);
(s) abandon enter into any Lease which would impair the Company's ability to qualify as a REIT;
(t) take any action or permit fail to lapse take any rights action, if such action or failure to any United States patent or patent applicationact could cause the Company to fail to quality as a REIT;
(u) Enter into any contract, agreement, arrangement or understanding with a customer that contains make any material non-standard terms, including but not limited to, non-standard discounts, provisions Tax election or settle or compromise any material liability for unpaid future deliverables, non-standard service requirements or future royalty payments, other than as is consistent with past practicesTaxes;
(v) Enter amend or waive any covenant, condition or provision of the Merger Agreement;
(w) make any loan of money to or investment in, or purchase any equity interest in, buy any property from or sell any property to, or enter into any contract, arrangement partnership or understanding joint venture with Legacy other than pursuant to do any arrangements existing between the Company and Legacy set forth on Schedule 5.7 of the foregoing Disclosure Letter that have been disclosed to Buyer on the date hereof nor amend or authorizewaive any term, recommend, take, commit, provision or agree condition in writing any Contract with Legacy;
(x) amend or otherwise to take, waive any term or announce an intention to take, any provision or condition of the actions described in this Section 5.1, or any other action that results or is reasonably likely to (i) result in any of the conditions to the Merger voting agreements set forth in Article VII hereof not being satisfied, (ii) result in any representation or warranty Schedule 5.7 of the Company contained Disclosure Letter in this Agreement that is qualified as to materiality becoming untrue or incorrect or any representation or warranty not so qualified becoming untrue or incorrect in any material respect (provided that representations made as of a specific date shall be required to be so true and correct, subject to qualifications, as of such date only), (iii) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder, or (iv) otherwise materially impair the ability of the Company to consummate the transactions contemplated hereby in accordance connection with the terms hereof or materially delay such consummationMerger; or
(wy) Take, amend or agree waive any term or fail to take, any action that would reasonably be expected to cause provision or condition of the Tender Offer (as defined in the Merger to fail to qualify as a reorganization pursuant to Section 368(a) of the CodeAgreement).
Appears in 1 contract
Samples: Securities Purchase Agreement (Price Enterprises Inc)
