Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly: (a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries; (c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii); (f) increase the compensation payable to its directors or officers or hire any employees; (g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures; (h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or (i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 7 contracts
Samples: Stock Purchase Agreement (Shelbourne Properties Ii Inc), Settlement Agreement (Shelbourne Properties I Inc), Stock Purchase Agreement (Shelbourne Properties I Inc)
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing, neither the Company nor any of its subsidiaries shallSubsidiaries will, except as set forth in the Disclosure Schedule or as required or expressly permitted by this Agreement or any of the other Transaction Documents or to the extent that the Purchaser otherwise consents in writing, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsOrganizational Documents in a manner adverse to the Purchaser;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, license, pledge, disposition, grant or encumbrance of, (i) any shares of any class of share capital stock or other ownership interest of the Company or any of its subsidiariesSubsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of such capital stock, or any other ownership interest (including, without limitation, including any phantom interest), of the Company or any of its subsidiaries Subsidiaries, other than (i) the issuance of shares of Company Common Stock upon the exercise or vesting of Equity Securities outstanding as of the date of this Agreement issued pursuant to the Equity Compensation Plans, and (ii) any assets the grant of securities in the ordinary course consistent with past practice, to directors, officers and employees in an aggregate amount not to exceed 2.0% of the Company issued and outstanding Equity Securities (or any of its subsidiariessuch higher percentage as may be consented to by the Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed);
(c) except in accordance take any action to adopt or implement a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization, other than any such actions taken with the Plan of Liquidation and solely respect to the extent necessary for Subsidiaries of the Company to qualify as a REIT, in the ordinary course of business;
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stocksecurities, property or otherwise, with respect other than dividends by wholly-owned Subsidiaries of the Company to any of its capital stockthe Company or to other wholly-owned Subsidiaries;
(de) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except pursuant to buyback programs in effect on the date of this Agreement;
(if) acquire (including, without limitation, by merger, consolidation, amend existing or acquisition enter into new Contracts relating to the distribution of stock Products or assets or any other business combination) any corporation, partnershipthe coordination of distributors of Products, other business organization than, in the case of such amendments or any division thereofnew Contracts, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of businessbusiness consistent with past practice; (iii) enter into any contract provided, however, that such Contracts are terminable by NewCo or agreement other than in accordance with the Plan Company as of Liquidationthe Closing; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;or
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, commitment to do any of the foregoing. Nothing contained in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Company’s or its Subsidiaries’ operations.
Appears in 4 contracts
Samples: Transaction Agreement (New Laser Corp), Transaction Agreement (New Laser Corp), Transaction Agreement (New Laser Corp)
Conduct of Business by the Company. The Company covenants and agrees that, from prior to the date earlier (the “Effective Time”) of this Agreement until (i) the date that new directors are appointed appointment or election to the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 Directors of persons designated by the Offeror who represent a majority of the Disclosure Schedule or as contemplated by any other provision directors of the Company and (ii) the termination of this Agreement, unless the Plan of Liquidation Offeror shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement:
(a) the Company shall, and the Settlement Agreement, the businesses shall cause each of the Company and Subsidiaries to, conduct its subsidiaries shall be conducted businesses only in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and maintain its subsidiaries to take any action except facilities in, accordance with this Agreementthe usual, the Settlement Agreement ordinary and the Plan regular course of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsbusiness;
(b) the Company shall, and shall cause each of the Subsidiaries to, fully cooperate with the Offeror with respect to decisions and expenditures in respect of the exploration, development and maintenance of all of the properties and assets owned and controlled by the Company or the Subsidiaries, provided that the Offeror hereby consents to the Company incurring the expenditures and undertaking the activities set out in Schedule 5.1(b);
(c) except for transactions involving only the Company and one or more Subsidiary, the Company shall not, and shall cause each of the Subsidiaries not to:
(i) issue, sell, pledge, lease, dispose of, grantencumber or agree to issue, encumber, or authorize the issuance, salesell, pledge, dispositionlease, grant dispose of or encumbrance encumber (or permit the Subsidiary to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber): (iA) any shares of any class of capital stock or other ownership interest of except for the Options to be granted (and the Company or Shares issuable pursuant thereto) that are noted in notes (1), (2) and (3) to Schedule C to the Company Disclosure Statement any of its subsidiariesadditional shares of, or any options, warrants, convertible securities calls, conversion privileges or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), securities of the Company or any Subsidiary (other than pursuant to the exercise of its subsidiaries Options, Warrants or other convertible securities currently outstanding); or (iiB) except in the ordinary course of business, any assets of the Company or any and the Subsidiary in excess of its subsidiaries$100,000 in the aggregate;
(cii) except amend or agree to amend any of the terms of any of the Options or the Warrants, or amend, extend, terminate or otherwise alter (or agree to do any of the foregoing in respect of) any other contractual arrangement of the Company or any Subsidiary, provided that, for greater certainty, the foregoing shall not prevent the Board of Directors from taking, in accordance with Section 2.4, the necessary actions under the Stock Option Plan of Liquidation and solely resulting in any Option held by an optionholder who ceases to be an Eligible Person (as defined in the extent necessary Stock Option Plan) continuing in effect for the duration of the term of such Option;
(iii) amend or propose to amend the articles, by-laws or other constating documents of the Company to qualify as a REITor any Subsidiary;
(iv) split, combine or reclassify any outstanding Company Shares, or declare, set aside, make aside or pay any dividend or other distribution, distribution payable in cash, stock, property or otherwise, otherwise with respect to any of its capital stockthe Company Shares;
(dv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquireoffer to purchase (or permit any Subsidiary to redeem, directly purchase or indirectly, offer to purchase) any Company Shares or other securities of its capital stockthe Company or any shares or other securities of any Subsidiary;
(ivi) reorganize, amalgamate or merge the Company or any Subsidiary with any other person, company, partnership or other business organization whatsoever other than an internal bona fide reorganization of the Company or the Subsidiary (an “Internal Reorganization”);
(vii) reduce the stated capital of the Company or of any Subsidiary;
(viii) acquire or agree to acquire (including, without limitation, by merger, consolidationamalgamation, or acquisition of stock or assets or any other business combinationotherwise) any corporationcompany, partnership, partnership or other business organization or division, or incorporate or form any division thereofcompany, real partnership or other business organization or make any investment either by purchase of shares or securities, contributions of capital (other than to a Subsidiary), property transfer or purchase of, any property or assets of any material amount other person, company, partnership or other business organization which individually or in the aggregate are in excess of assets; $100,000;
(iiix) enter into or agree to the terms of any joint venture or similar agreement, arrangement or relationship, including any agreement, arrangement or relationship in respect of the Joint Venture;
(x) sell, transfer or assign (or permit the Subsidiary to sell, transfer or assign) any interest in any of the mineral properties of the Company or any Subsidiary;
(xi) except for borrowings under existing credit facilitiesas set out in Schedule 5.1(b), incur or commit to incur any indebtedness for borrowed money (except for borrowing of working capital in the ordinary course of business and consistent with past practice under pre-existing contractual arrangements as in effect on the date hereof), capital expenditures or any other material liability, contractual commitment or obligation or issue any debt securities (for greater certainty, regardless of whether such indebtedness, capital expenditure, liability, commitment, obligation or assumeissuance is contemplated in the Company’s existing business plan or any feasibility study) involving amounts which, guarantee individually or endorsein the aggregate, exceed $100,000;
(xii) endorse or otherwise as an accommodation become responsible for, the obligations of any other person, company, partnership or other business organization, or make any loans or advances;
(xiii) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or the Subsidiary other than in connection with an Internal Reorganization;
(xiv) pay, discharge or grant satisfy any security interest in any of its assets except material claims, liabilities or obligations other than the payment, discharge or satisfaction, in the ordinary course of businessbusiness consistent with past practice, of liabilities reflected or reserved against in the Company’s financial statements or incurred in the ordinary course of business consistent with past practice;
(xv) authorize, recommend, propose or agree to any release or relinquishment of any material contractual right or other material right under any licence or permit;
(xvi) abandon or fail to diligently pursue any application for any licence, permit, order, authorization, consent, approval or registration; or
(xvii) waive, release, grant or transfer any rights of value or modify or change in any material respect any existing licence, lease, permit, material contract or other material document, other than in the ordinary course of business consistent with past practice;
(d) except (i) with the consent of the Offeror, (ii) in connection with the offer letters set forth in Schedule G to the Company Disclosure Statement, (iii) as contemplated in notes (1) and (2) of Schedule I to the Company Disclosure Statement (which, for greater certainty, shall not result in Employee severance costs exceeding $7 million in the aggregate), (iv) for reasonable fees, if any, paid to members of the Special Committee solely in connection with their participation on such committee and (v) annual increases in salary to management and Company employees in the ordinary course of business and consistent with past practice, the Company shall not, and shall cause the Subsidiary not to, enter into or modify any contract employment, consulting, severance, or agreement similar agreements or arrangements with, or grant any bonuses, salary or fee increases, severance or termination pay to, any officers or directors or, in the case of employees or consultants who are not officers or directors other than as disclosed in the Company’s Public Documents or as provided in the agreements disclosed in the Company Disclosure Statement, take any action other than in accordance the ordinary, regular and usual course of business and consistent with past practice (none of which actions shall be unreasonable or unusual) with respect to the Plan grant of Liquidationany bonuses, salary or fee increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof;
(e) except as disclosed in the Company Disclosure Statement, the Company shall not, and shall cause the Subsidiary not to, adopt or amend any bonus, profit sharing, incentive, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) the Company shall use its reasonable best efforts, and shall cause the Subsidiary, to use its reasonable best efforts, to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(g) the Company shall:
(i) use its reasonable best efforts, and cause the Subsidiary to use its reasonable best efforts, to preserve intact their respective business organizations, assets (including intellectual property) and goodwill, to maintain their respective real property interests (including title to, leasehold interests in respect of any real property) in good standing, to keep available the services of its and their officers and employees as a group and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with them;
(ii) not take any action, or permit the Subsidiary to take any action, which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Time if then made, and promptly notify the Offeror first immediately orally and then promptly in writing of the occurrence of any Company Material Adverse Effect in the course of its or the Subsidiary’s businesses or in the operation of its or any of the Subsidiary’s properties and of any material governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(iii) not take any action, or permit the Subsidiary to take any action, which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Time if then made; or and
(iv) promptly notify the Offeror, first immediately orally and then promptly in writing, of the occurrence of any Company Material Adverse Change in the course of its or the Subsidiary’s businesses or in the operation of its or the Subsidiary’s properties and of any material governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(h) except as otherwise specifically described in this Agreement, the Company shall not, and shall not permit the Subsidiary to, authorize or propose, or enter into or amend modify any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitmentarrangement, to do any of the foregoingmatters prohibited by the other paragraphs of this Section 5.1;
(i) the Company shall not amend the Shareholder Rights Plan without the prior written consent of the Offeror, such consent not to be unreasonably withheld;
(j) the Company shall take all further action necessary:
(i) in order to ensure that the Separation Time (as defined in the Shareholder Rights Plan) does not occur in connection with this Agreement, the Lock-up Agreement or any agreements entered into between the Offeror and each of the directors and officers of the Company in connection with the Offer contemporaneously herewith, the Offer and any Subsequent Acquisition Transaction; and
(ii) otherwise to give effect to the waiver, effective immediately prior to the time when the Offeror first takes up Company Shares under the Offer, of the application of the Shareholder Rights Plan to the Offer, any Compulsory Acquisition, any Subsequent Acquisition Transaction and any acquisition of Company Shares thereunder, and any other action taken by the Offeror in furtherance thereof, and to ensure that the Shareholder Rights Plan does not interfere with or impede the success of such transactions. The Company covenants that it will not waive the application of the Shareholder Rights Plan to any other Acquisition Proposal unless it is a Superior Acquisition Proposal and then only if, in the opinion of the Board of Directors acting in good faith and upon advice of its legal advisors reflected in the minutes of the Board of Directors, the failure to waive the application of the Shareholder Rights Plan in respect of such Superior Acquisition Proposal would be inconsistent with the fiduciary duties of the Board of Directors;
(k) the Company and the Subsidiary shall:
(i) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects;
(ii) timely pay all Taxes which are due and payable;
(iii) not make or rescind any material express or deemed election relating to Taxes;
(iv) not make a request for a Tax ruling or enter into a closing agreement with any taxing authorities;
(v) not settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes in excess of $100,000 or that would otherwise have a Company Material Adverse Effect; and
(vi) not change in any material respect any of its methods of reporting losses, deductions or accounting for income tax purposes from those employed in the preparation of its Tax Return for the taxation year ending December 31, 2005, except as may be required by applicable law;
(l) the Company shall use its reasonable best efforts to satisfy (or cause the satisfaction of) the conditions of the Offer set forth in Schedule 2.1(e) to the extent the same is within its control, and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable laws to support the Offer, including using its best efforts to:
(i) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable law;
(ii) cooperate with the Offeror to oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affect the Offeror’s ability to consummate the Offer; and
(iii) cooperate with the Offeror in connection with the performance by it of its obligations hereunder; and
(m) the Company shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such laws.
Appears in 4 contracts
Samples: Support Agreement (Agnico Eagle Mines LTD), Support Agreement (Agnico Eagle Mines LTD), Support Agreement (Agnico Eagle Mines LTD)
Conduct of Business by the Company. The Company agrees that, from between the date of this Agreement until and the date that new directors are appointed to Effective Time or the Board pursuant to Section 3 earlier termination of Annex B heretothis Agreement, except as (1) expressly contemplated by any provision of this Agreement or any Ancillary Agreement, (2) as set forth in Section 6.01 5.01(a) of the Company Disclosure Schedule Schedules, and (3) as required by applicable Law (including as may be requested or compelled by any Governmental Authority), unless Parent shall otherwise consent in writing: (i) the Company shall conduct its business in the Ordinary Course of Business in all material respects; and (ii) the Company shall use its commercially reasonable efforts to preserve substantially intact the current business organization of the Company. By way of amplification and not limitation, except as (1) expressly contemplated by any other provision of this Agreement or by any Ancillary Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses (2) as set forth in Section 5.01(a) of the Company and its subsidiaries shall be conducted inDisclosure Schedules, and the Company and its subsidiaries shall not take any action except innot, and Purchaser shall not cause between the Company and its subsidiaries to take any action except in, accordance with date of this Agreement, the Settlement Agreement and the Plan Effective Time or the earlier termination of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallthis Agreement, directly or indirectly, do any of the following without the prior written consent of Parent:
(ai) amend or otherwise change its Certificate certificate of Incorporation incorporation or By-laws or equivalent organizational documentsbylaws;
(bii) issue, sell, pledge, dispose of, grant, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (iA) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesCompany, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company, provided that (x) the exercise, conversion or settlement of any Company Options, Company RSUs or any of its subsidiaries Company PSUs or (iiy) grants of Company Options, Company RSUs or Company PSUs that would be permitted by Section 5.01(a)(vii) shall not require the consent of Parent; or (B) any material assets of the Company or any of its subsidiariesCompany;
(ciii) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than redemptions of equity securities from former employees or other former service providers upon the terms set forth in the underlying agreements governing such equity securities;
(iv) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any Person, corporation, partnership, other business organization or any division thereof, real property or (B) acquire any material amount assets, except purchases of assets; supplies in the Ordinary Course of Business, (iiC) except for borrowings under existing credit facilities, 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, or make any loans or advances, or intentionally grant any security interest in any of its assets assets, in each case, except in the ordinary course Ordinary Course of business; Business or (iiiD) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company;
(vi) other than the Transactions as contemplated by this Agreement, enter into or adopt a plan or agreement of reorganization, merger, recapitalization or consolidation or adopt a plan of complete or partial liquidation or dissolution;
(vii) except to the extent required by a Plan or applicable Law, (A) increase the compensation or severance entitlements of any current or former employee, officer, consultant or director of the Company, (B) make any change to employee compensation, incentives or benefits after the filing of the Form S-4 that would reasonably be expected to require an amendment to the Form S-4 under applicable Law, (C) pay or award, or commit to pay or award, any bonuses or incentive compensation to any current or former employee, officer, consultant or director of the Company, (D) establish, adopt, extend, renew, provide discretionary benefits under, enter into, terminate or amend in any material respect any collective bargaining agreement or Plan, (E) accelerate any rights or benefits (including with respect to any payments, benefits or vesting), or make any material determinations not in the Ordinary Course of Business, under any collective bargaining agreement or Plan, (F) grant any awards under the Company Plans or any other equity or equity-based compensation, (G) hire or engage any officers or employees or (H) knowingly or affirmatively waive any post-employment restrictive covenant with any current or former employee, officer, consultant or director;
(viii) enter into any contract or agreement with any union, works council or labor organization covering the Company’s employees;
(ix) materially amend accounting policies or procedures, other than reasonable and usual amendments in accordance with the Plan Ordinary Course of Liquidation; Business or as required by GAAP;
(ivx) (A) make, change or revoke any Tax election, (B) amend any material Tax Return or settle or compromise any material United States federal, state, local or non-United States income Tax liability, (C) initiate or enter into any closing or amend voluntary disclosure agreement with any contract, agreement, commitment or arrangement Tax authority with respect to any matter set forth amount of Taxes or consent to any extension or waiver of the limitation period applicable to any claim or assessment for any material amount of Tax relating to the Company, (D) change any method of Tax accounting or annual Tax accounting period, (E) request any private letter or similar Tax ruling, (F) apply for any Tax incentive program or (G) surrender any right to claim a material refund of Taxes or an offset or other reduction in this Section 6.01(e) except as permitted by clauses (ii) and (iii)liability for Taxes or refund;
(fxi) increase (A) enter into any Contract that would have been a Company Material Contract if entered into on the compensation payable date hereof or (B) materially amend, or modify or consent to the termination (excluding any expiration in accordance with its directors terms) of any Company Material Contract or officers amend, waive, modify or hire consent to the termination (excluding any employeesexpiration in accordance with its terms) of the Company’s material rights thereunder, in each case except in the Ordinary Course of Business;
(gxii) take acquire or lease, or agree to acquire or lease, any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or proceduresreal property;
(hxiii) terminateinitiate, repealsettle or compromise any Actions or waive any claims or rights of substantial value;
(xiv) enter into any Contract, amend understanding or commitment that contains any restrictive covenant or otherwise changematerially restrains, restricts, limits or impedes the ability of the Company to compete with or conduct any business in any geographic area or solicit the employment of any Persons, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(xv) (x) adopt, approve, modify or amend in any material respect any plan or program with a Development Partner relating to the development or commercialization of any Company Product, including any decision or action with respect thereto that is subject to joint governance approval with any such Development Partner, or take make any action inconsistent with material and binding proposal or commitment to a Development Partner regarding the terms ofadoption, approval, modification or amendment of any such plan or program, (y) initiate any new pre-clinical or clinical trials, or (z) fund or agree to fund any clinical trial sponsored by another Person or any expansion of a clinical trial sponsored by another Person;
(xvi) make or agree to make, any capital expenditure that, in the Plan aggregate, are in excess of Liquidation$25,000, except as required under Contracts disclosed under this Agreement; or
(ixvii) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, binding commitment to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Conduct of Business by the Company. The Except for matters set forth in the Company agrees thatDisclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 Effective Time the Company shall, and shall cause USPGI to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of Annex B heretothe foregoing, except as for matters set forth in Section 6.01 the Company Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit USPGI to, do any of the Disclosure Schedule following without the prior written consent of Parent (which consent shall not be unreasonably withheld or as contemplated by delayed):
(i) (A) declare, set aside or pay any dividends on, or make any other provision of this Agreementdistributions in respect of, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallmembership interests, directly other than dividends and distributions by USPGI to the Company, (B) split, combine or indirectly:
(a) amend reclassify any of its membership interests or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, issue or authorize the issuance, sale, pledge, disposition, grant or encumbrance issuance of any other securities in respect of, in lieu of or in substitution for its membership interests, (iC) any shares of any class of capital stock purchase, redeem or other ownership interest otherwise acquire membership interests of the Company or USPGI or any other securities thereof or any rights, warrants or options to acquire any such interests or other securities, (D) adopt a plan of its subsidiariescomplete or partial liquidation, dissolution, merger (except as specifically permitted under Section 5.01(a)(iv) below), consolidation, recapitalization, or other reorganization of the Company or USPGI or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or USPGI or (E) pledge after the date hereof any membership interests of the Company or USPGI;
(ii) issue, deliver, sell or grant (A) any membership interests of the Company or USPGI, (B) any Voting Company Debt or other voting securities of the Company or USPGI, (C) any securities convertible into or exchangeable for, or any options, warrantswarrants or rights to acquire, convertible any such membership interest, Voting Company Debt, voting securities or other rights of any kind to acquire any shares of such capital stock, convertible or any other ownership interest (including, without limitation, any phantom interest), exchangeable securities of the Company or any of its subsidiaries USPGI or (iiD) any assets “phantom” rights, or interest-based performance units of the Company or any of its subsidiariesUSPGI;
(ciii) amend the Company Articles, the Company Operating Agreement or the comparable organizational documents of USPGI;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any equity interest in or business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets in excess of $1,000,000 in the aggregate, other than (i) purchases contemplated by the Medical Benefit Distribution Agreement dated as of October 1, 2003, between BD and USPGI, (ii) purchases of diabetes health care products and ancillary supplies and (iii) purchases of other inventory in the ordinary course of business;
(v) (A) (i) grant to any of the five most highly compensated employees of the Company (the “Specified Employees”) and (ii) except in accordance with the Plan ordinary course of Liquidation and solely business (unless it would result in such executive officer or director constituting a Specified Employee) or to the extent necessary for required under employment agreements in effect as of the date hereof grant to any executive officer or director of the Company to qualify as a REITor USPGI (other than the Specified Employees), declarein each of case (i) or (ii), set asideany increase in compensation, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect (B) (i) grant to any Specified Employee and (ii) except in the ordinary course of its capital stockbusiness (unless it would result in such executive officer or director constituting a Specified Employee) grant to any executive officer or director of the Company or USPGI (other than the Specified Employees), in each of case (i) or (ii), any increase in severance or termination pay;
(dvi) reclassifymake any change in accounting methods, combineprinciples or practices materially affecting the reported consolidated assets, splitliabilities or results of operations of the Company, subdivide except insofar as may have been required by a change in GAAP;
(vii) make any material Tax election or redeemsettle or compromise any material Tax liability or refund;
(viii) except as may be required by Law, enter into, adopt or amend or terminate any employment, consulting, severance or similar agreements, Company Benefit Plan or other employee benefit agreement, trust, plan, fund award or other arrangement for the benefit or welfare of any director, officer or employee;
(ix) except as otherwise required by Law, enter into any or modify in any respect any labor or collective bargaining agreement or any other agreement or commitment to or relating to any labor union;
(x) after the date hereof enter into any transaction with, or purchase enter into any agreement, arrangement, or otherwise acquireunderstanding with, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, the Company’s or acquisition USPGI’s affiliates that would be required to be disclosed pursuant to Item 404 of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationSEC Regulation S-K; or
(ixi) announce an intentiontake, enter into authorize any agreement of, or otherwise make a commitmentcommit or agree to take any of, to do any of the foregoingforegoing actions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Millstream Acquisition Corp), Agreement and Plan of Merger (RGGPLS Holding, Inc.), Agreement and Plan of Merger (GRH Holdings, L.L.C.)
Conduct of Business by the Company. The Company agrees that(a) From and after May 4, from 2021 until the date earlier of the Effective Time and the date, if any, on which this Agreement until the date that new directors are appointed to the Board is terminated pursuant to Section 3 of Annex B hereto8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 6.01 5.1(a) of the Company Disclosure Schedule or (z) as contemplated otherwise contemplated, required or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreementunless Parent shall otherwise consent (which consent shall not be unreasonably withheld), the businesses Company shall maintain the status of the Company as a REIT and its subsidiaries shall be conducted inshall, and shall cause each of the Company Subsidiaries to, use its commercially reasonable efforts (i) to conduct its business in the ordinary course consistent with past practice in all material respects, (ii) to preserve intact in all material respects its business organization and its subsidiaries shall not take any action except ingoodwill and relationship with customers, third party payors, including Governmental Entities, and Purchaser shall not cause others with which it has material business dealings and (iii) to maintain its material assets and properties in adequate working condition and good repair, ordinary wear and tear excepted.
(b) In addition to and without limiting the generality of the foregoing, from and after May 4, 2021 until the earlier of the Effective Time and the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 5.1(b) of the Company and its subsidiaries to take any action except inDisclosure Schedule or (z) as otherwise contemplated, accordance with required or permitted by this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentenceunless Parent shall otherwise consent (which consent shall not be unreasonably withheld), except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor shall not, and shall not permit any of its subsidiaries shallCompany Subsidiaries to, directly or indirectly:
(ai) amend or otherwise change propose or agree to amend, in any material respect, any of its Certificate Constituent Documents or waive the stock ownership limit under the charter of Incorporation or By-laws or equivalent organizational documentsthe Company;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely subject to the extent necessary for the Company to qualify as a REITSection 6.15, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock or property) in respect of any of its capital stock, property except for (A) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Common Stock in an amount not exceeding $0.18 per share and (B) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Preferred Stock in an amount equal to $0.3828125 per share; provided that notwithstanding the restriction on dividends and other distributions in this Section 5.1(b)(ii), the Company and any Company Subsidiary shall be permitted to make distributions, including under Sections 858 or otherwise860 of the Code, with respect reasonably necessary for the Company to maintain its status as a REIT under the Code (or applicable state Law) and avoid or reduce the imposition of any entity level income or excise Tax under the Code (or applicable state Law);
(iii) adjust, split, combine or reclassify any of its capital stock or issue or propose or authorize the issuance of any other securities (including options, warrants or any similar security exercisable for, or convertible into, such other security) in lieu of, or in substitution for, shares of its capital stock;
(dA) reclassifyrepurchase, combine, split, subdivide redeem or redeemotherwise acquire any shares of the capital stock of the Company or any of the Company Subsidiaries, or purchase any other equity interests or any rights, warrants or options to acquire any such shares or interests, except for the withholding of shares to satisfy withholding Tax obligations in respect of Restricted Stock Awards outstanding as of May 4, 2021 or awarded after May 4, 2021 in accordance with their terms and the Incentive Plans in effect on May 4, 2021 or (B) acquire or dispose of any securities of any third party that are publicly traded or any rights, warrants or options to acquire any such securities;
(v) issue, sell, grant, pledge, amend, grant any rights in respect of or otherwise acquire, directly or indirectly, encumber any shares of its capital stock;
stock or other securities (iincluding any options, warrants or any similar security exercisable for, or convertible into, such capital stock or similar security) acquire or make any changes (includingby combination, without limitation, by merger, consolidation, reorganization, liquidation or otherwise) in the capital structure of the Company or any of the Company Subsidiaries, except for the issuance of Company Common Shares in connection with the exercise of Options or the vesting or settlement of other equity or equity-linked awards outstanding as of May 4, 2021;
(vi) merge or consolidate with any other Person or acquire any material assets or make a material investment in (whether through the acquisition of stock, assets or otherwise) any other Person, except for acquisitions set forth in Section 5.1(b)(vi) of the Company Disclosure Schedule;
(vii) sell, lease, license, subject to a material Lien, except for a Permitted Lien, or otherwise dispose of any assets (excluding cash and cash equivalents for payables arising in the ordinary course), or any product lines or businesses of the Company or any Company Subsidiaries (including capital stock or assets or other equity interests of any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (iiCompany Subsidiary) except for borrowings under existing credit facilities(A) dispositions of immaterial assets (other than real property) that are obsolete, incur surplus, uneconomical or otherwise no longer useful in the business of the Company and the Company Subsidiaries for a purchase price that, in each case, represents the market value of such asset in all material respects and for amounts not to exceed $25,000 in the aggregate or (B) dispositions, leases or Liens set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule, which, in the case of dispositions of assets, shall be subject to a minimum sale amount set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule;
(viii) make any loans, advances or capital contributions to any other Person, except for loans, advances or capital contributions set forth in Section 5.1(b)(viii) of the Company Disclosure Schedule;
(ix) create, incur, guarantee or assume any indebtedness (excluding trade payables arising in the ordinary course), except for indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution and delivery of this Agreement and set forth in Section 5.1(b)(ix) of the Company Disclosure Schedule or issue any debt securities as otherwise described in such section of the Company Disclosure Schedule;
(x) make or assume, guarantee or endorsecommit to make capital expenditures other than (A) in the individual amounts set forth in Section 5.1(b)(x) of the Company Disclosure Schedule, or otherwise (B) provided that the Company provides prompt written notice to Parent, (i) in conjunction with emergency repairs or (ii) as an accommodation become responsible forrequired by Law;
(xi) except as required by Contracts in effect prior to the execution and delivery of the Original Agreement or Company Benefit Plans or as permitted by Section 5.1(b)(xi) of the Company Disclosure Schedule, (A) increase the obligations of any person, compensation or make any loans other benefits payable or advances, provided to the Company’s directors or grant any security interest in any of its assets except in the ordinary course of businessemployees; (iiiB) enter into any contract employment, bonus, change of control, severance or retention agreement with any employee of the Company; (C) establish, adopt, or enter into any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries; (D) amend any plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except to make changes of an administrative nature that would not result in a material increase in cost to the Company or as is required to comply with Section 409A of the Code; or (E) terminate the employment of any Company employee, other than for “cause”;
(A) settle or compromise any material claim, audit, arbitration, suit, investigation, complaint or other proceeding, except for any settlements or compromises set forth in Section 5.1(b)(xii) of the Company Disclosure Schedule, which settlements or compromises involve total aggregate payments of less than $500,000 in the aggregate or (B) enter into any consent decree, injunction or similar restraint or form of equitable relief in settlement of any material claim or audit that would materially restrict the operations of the business after the Effective Time;
(A) modify or amend in any materially adverse respect or terminate any Material Contract (other than any termination or renewal in accordance with the Plan terms of Liquidation; or any existing Material Contract that occurs automatically without any action other than notice of renewal), (ivB) enter into any successor agreement to an expiring Material Contract that changes the terms of the expiring Material Contract in a way that is materially adverse to the Company or any Company Subsidiary or (C) enter into any new agreement that would have been considered a Material Contract if it were entered into at or prior to May 4, 2021;
(xiv) except as required by applicable Law or changes in GAAP, materially change any of its accounting policies for financial accounting purposes;
(xv) enter into any Company Tax Protection Agreement; make, change or rescind any material election relating to Taxes; change a material method of Tax accounting; file or amend any contractmaterial Tax Return, agreementsettle or compromise any material federal, commitment state, local or arrangement foreign Tax liability, audit, claim or assessment; enter into any closing agreement related to a material amount of Taxes; knowingly surrender any right to claim any material Tax refund; give or request any waiver of a statute of limitations with respect to any matter material Tax Return except, in each case, (A) to the extent required by Law or (B) to the extent necessary (x) to preserve the Company’s qualification as a REIT under the Code or (y) to qualify or preserve the status of any Company Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xvi) terminate, cancel, amend or modify any insurance policies maintained by it covering the Company or any of the Company Subsidiaries or their respective properties which is not replaced by a comparable amount of insurance coverage;
(xvii) enter into any new line of business;
(xviii) take any action that would, or fail to take any action, the failure of which to be taken would, reasonably be expected to cause the Company to fail to qualify as a REIT or any Company Subsidiary to cease to be treated as any of (A) a partnership or disregarded entity for United States federal income tax purposes or (B) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xix) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of the Company Subsidiaries;
(xx) incur any Expenses in connection with this Agreement and the transactions contemplated by this Agreement or pay any Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement in excess of the amounts set forth in Section 5.1(b)(xx) of the Company Disclosure Schedule, in each case without providing Parent with reasonable advance notice and consulting with Parent regarding incurring or paying such Expenses in excess of such amounts;
(A) modify or amend the engagement letters entered into with the Company Financial Advisors to increase the compensation payable by the Company thereunder or (B) enter into any new Contract with the Company Financial Advisors; or
(xxii) authorize any of, or commit, resolve, propose or agree to take any of, the foregoing actions.
(c) Notwithstanding anything to the contrary set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase Agreement, nothing in this Agreement shall prohibit the compensation payable Company from taking any action, or refraining to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP at any time or from time to time if, in the ordinary course reasonable judgment of businessthe Company Board, with respect to accounting policies such action or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
inaction is reasonably necessary (i) announce an intention, enter into for the Company to avoid or to continue to avoid incurring entity level income or excise Taxes under the Code (or applicable state Law) or to maintain its qualification as a REIT under the Code for any agreement period or portion thereof ending on or prior to the Effective Time or (ii) to establish or maintain any exemption from or otherwise make avoid the imposition of any requirement that the Company or any Company Subsidiary be registered as an investment company under the Investment Company Act, including in the case of clause (ii), making dividend or any other actual, constructive or deemed distribution payments to stockholders of the Company in accordance with this Agreement or otherwise as permitted pursuant to Section 5.1(b)(ii).
(d) Notwithstanding anything to the contrary set forth in this Agreement (including this Section 5.1), nothing shall prevent the Company or any of its Subsidiaries from taking or failing to take any commercially reasonable action in response to a commitmentCOVID-19 Measure that would otherwise violate or breach this Agreement, which response shall not be deemed a breach of this Agreement; provided, however, that, to do any the extent reasonably practicable, the Company must provide reasonable advance written notice to Parent with reasonable detail of the foregoingsuch response prior to such response.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Conduct of Business by the Company. The (a) From the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 5.1(a) of the Company agrees thatDisclosure Schedule or (z) as otherwise contemplated, required or permitted by this Agreement, unless Parent shall otherwise consent (which consent shall not be unreasonably withheld), the Company shall maintain the status of the Company as a REIT and shall, and shall cause each of the Company Subsidiaries to, use its commercially reasonable efforts (i) to conduct its business in the ordinary course consistent with past practice in all material respects, (ii) to preserve intact in all material respects its business organization and goodwill and relationship with customers, third party payors, including Governmental Entities, and others with which it has material business dealings and (iii) to maintain its material assets and properties in adequate working condition and good repair, ordinary wear and tear excepted.
(b) In addition to and without limiting the generality of the foregoing, from the date of this Agreement until the date that new directors are appointed to earlier of the Board Effective Time and the date, if any, on which this Agreement is earlier terminated pursuant to Section 3 of Annex B hereto8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 6.01 5.1(b) of the Company Disclosure Schedule or (z) as contemplated otherwise contemplated, required or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreementunless Parent shall otherwise consent (which consent shall not be unreasonably withheld), the businesses of the Company and its subsidiaries shall be conducted innot, and the Company and its subsidiaries shall not take permit any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallSubsidiaries to, directly or indirectly:
(ai) amend or otherwise change propose or agree to amend, in any material respect, any of its Certificate Constituent Documents or waive the stock ownership limit under the charter of Incorporation or By-laws or equivalent organizational documentsthe Company;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely subject to the extent necessary for the Company to qualify as a REITSection 6.15, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock or property) in respect of any of its capital stock, property except for (A) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Common Stock in an amount not exceeding $0.18 per share and (B) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Preferred Stock in an amount equal to $0.3828125 per share; provided that notwithstanding the restriction on dividends and other distributions in this Section 5.1(b)(ii), the Company and any Company Subsidiary shall be permitted to make distributions, including under Sections 858 or otherwise860 of the Code, with respect reasonably necessary for the Company to maintain its status as a REIT under the Code (or applicable state Law) and avoid or reduce the imposition of any entity level income or excise Tax under the Code (or applicable state Law);
(iii) adjust, split, combine or reclassify any of its capital stock or issue or propose or authorize the issuance of any other securities (including options, warrants or any similar security exercisable for, or convertible into, such other security) in lieu of, or in substitution for, shares of its capital stock;
(div) reclassify(A) repurchase, combine, split, subdivide redeem or redeemotherwise acquire any shares of the capital stock of the Company or any of the Company Subsidiaries, or purchase any other equity interests or any rights, warrants or options to acquire any such shares or interests, except for the withholding of shares to satisfy withholding Tax obligations in respect of Restricted Stock Awards outstanding as of the date of this Agreement or awarded after the date of this Agreement in accordance with their terms and the Incentive Plans in effect on the date of this Agreement or (B) acquire or dispose of any securities of any third party that are publicly traded or any rights, warrants or options to acquire any such securities;
(v) issue, sell, grant, pledge, amend, grant any rights in respect of or otherwise acquire, directly or indirectly, encumber any shares of its capital stock;
stock or other securities (iincluding any options, warrants or any similar security exercisable for, or convertible into, such capital stock or similar security) acquire or make any changes (includingby combination, without limitation, by merger, consolidation, reorganization, liquidation or otherwise) in the capital structure of the Company or any of the Company Subsidiaries, except for the issuance of Company Common Shares in connection with the exercise of Options or the vesting or settlement of other equity or equity-linked awards outstanding as of the date of this Agreement;
(vi) merge or consolidate with any other Person or acquire any material assets or make a material investment in (whether through the acquisition of stock, assets or otherwise) any other Person, except for acquisitions set forth in Section 5.1(b)(vi) of the Company Disclosure Schedule;
(vii) sell, lease, license, subject to a material Lien, except for a Permitted Lien, or otherwise dispose of any assets (excluding cash and cash equivalents for payables arising in the ordinary course), or any product lines or businesses of the Company or any Company Subsidiaries (including capital stock or assets or other equity interests of any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (iiCompany Subsidiary) except for borrowings under existing credit facilities(A) dispositions of immaterial assets (other than real property) that are obsolete, incur surplus, uneconomical or otherwise no longer useful in the business of the Company and the Company Subsidiaries for a purchase price that, in each case, represents the market value of such asset in all material respects and for amounts not to exceed $25,000 in the aggregate or (B) dispositions, leases or Liens set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule, which, in the case of dispositions of assets, shall be subject to a minimum sale amount set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule;
(viii) make any loans, advances or capital contributions to any other Person, except for loans, advances or capital contributions set forth in Section 5.1(b)(viii) of the Company Disclosure Schedule;
(ix) create, incur, guarantee or assume any indebtedness (excluding trade payables arising in the ordinary course), except for indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution and delivery of this Agreement and set forth in Section 5.1(b)(ix) of the Company Disclosure Schedule or issue any debt securities as otherwise described in such section of the Company Disclosure Schedule;
(x) make or assume, guarantee or endorsecommit to make capital expenditures other than (A) in the individual amounts set forth in Section 5.1(b)(x) of the Company Disclosure Schedule, or otherwise (B) provided that the Company provides prompt written notice to Parent, (i) in conjunction with emergency repairs or (ii) as an accommodation become responsible forrequired by Law;
(xi) except as required by Contracts in effect prior to the execution and delivery of this Agreement or Company Benefit Plans or as permitted by Section 5.1(b)(xi) of the Company Disclosure Schedule, (A) increase the obligations of any person, compensation or make any loans other benefits payable or advances, provided to the Company’s directors or grant any security interest in any of its assets except in the ordinary course of businessemployees; (iiiB) enter into any contract employment, bonus, change of control, severance or retention agreement with any employee of the Company; (C) establish, adopt, or enter into any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries; (D) amend any plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except to make changes of an administrative nature that would not result in a material increase in cost to the Company or as is required to comply with Section 409A of the Code; or (E) terminate the employment of any Company employee, other than for “cause”;
(xii) (A) settle or compromise any material claim, audit, arbitration, suit, investigation, complaint or other proceeding, except for any settlements or compromises set forth in Section 5.1(b)(xii) of the Company Disclosure Schedule, which settlements or compromises involve total aggregate payments of less than $500,000 in the aggregate or (B) enter into any consent decree, injunction or similar restraint or form of equitable relief in settlement of any material claim or audit that would materially restrict the operations of the business after the Effective Time;
(xiii) (A) modify or amend in any materially adverse respect or terminate any Material Contract (other than any termination or renewal in accordance with the Plan terms of Liquidation; or any existing Material Contract that occurs automatically without any action other than notice of renewal), (ivB) enter into any successor agreement to an expiring Material Contract that changes the terms of the expiring Material Contract in a way that is materially adverse to the Company or any Company Subsidiary or (C) enter into any new agreement that would have been considered a Material Contract if it were entered into at or prior to the date hereof;
(xiv) except as required by applicable Law or changes in GAAP, materially change any of its accounting policies for financial accounting purposes;
(xv) enter into any Company Tax Protection Agreement; make, change or rescind any material election relating to Taxes; change a material method of Tax accounting; file or amend any contractmaterial Tax Return, agreementsettle or compromise any material federal, commitment state, local or arrangement foreign Tax liability, audit, claim or assessment; enter into any closing agreement related to a material amount of Taxes; knowingly surrender any right to claim any material Tax refund; give or request any waiver of a statute of limitations with respect to any matter material Tax Return except, in each case, (A) to the extent required by Law or (B) to the extent necessary (x) to preserve the Company’s qualification as a REIT under the Code or (y) to qualify or preserve the status of any Company Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xvi) terminate, cancel, amend or modify any insurance policies maintained by it covering the Company or any of the Company Subsidiaries or their respective properties which is not replaced by a comparable amount of insurance coverage;
(xvii) enter into any new line of business;
(xviii) take any action that would, or fail to take any action, the failure of which to be taken would, reasonably be expected to cause the Company to fail to qualify as a REIT or any Company Subsidiary to cease to be treated as any of (A) a partnership or disregarded entity for United States federal income tax purposes or (B) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xix) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of the Company Subsidiaries;
(xx) incur any Expenses in connection with this Agreement and the transactions contemplated by this Agreement or pay any Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement in excess of the amounts set forth in Section 5.1(b)(xx) of the Company Disclosure Schedule, in each case without providing Parent with reasonable advance notice and consulting with Parent regarding incurring or paying such Expenses in excess of such amounts;
(A) modify or amend the engagement letters entered into with the Company Financial Advisors to increase the compensation payable by the Company thereunder or (B) enter into any new Contract with the Company Financial Advisors; or
(xxii) authorize any of, or commit, resolve, propose or agree to take any of, the foregoing actions.
(c) Notwithstanding anything to the contrary set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase Agreement, nothing in this Agreement shall prohibit the compensation payable Company from taking any action, or refraining to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP at any time or from time to time if, in the ordinary course reasonable judgment of businessthe Company Board, with respect to accounting policies such action or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
inaction is reasonably necessary (i) announce an intention, enter into for the Company to avoid or to continue to avoid incurring entity level income or excise Taxes under the Code (or applicable state Law) or to maintain its qualification as a REIT under the Code for any agreement period or portion thereof ending on or prior to the Effective Time or (ii) to establish or maintain any exemption from or otherwise make avoid the imposition of any requirement that the Company or any Company Subsidiary be registered as an investment company under the Investment Company Act, including in the case of clause (ii), making dividend or any other actual, constructive or deemed distribution payments to stockholders of the Company in accordance with this Agreement or otherwise as permitted pursuant to Section 5.1(b)(ii).
(d) Notwithstanding anything to the contrary set forth in this Agreement (including this Section 5.1), nothing shall prevent the Company or any of its Subsidiaries from taking or failing to take any commercially reasonable action in response to a commitmentCOVID-19 Measure that would otherwise violate or breach this Agreement, which response shall not be deemed a breach of this Agreement; provided, however, that, to do any the extent reasonably practicable, the Company must provide reasonable advance written notice to Parent with reasonable detail of the foregoingsuch response prior to such response.
Appears in 2 contracts
Samples: Merger Agreement (Equity Commonwealth), Merger Agreement (Equity Commonwealth)
Conduct of Business by the Company. The During such period, and except (i) as expressly permitted or required by this Agreement, (ii) as may be required by applicable Law or pursuant to the terms of any Company agrees thatBenefit Plan as in effect on the date hereof, from (iii) for any actions taken reasonably and in good faith in response to COVID-19 or COVID-19 Measures, (iv) as set forth in Section 6.1 of the Company Disclosure Letter or (v) with the prior written consent of Parent (which consent will not be unreasonably withheld, conditioned or delayed):
(a) the Company shall, and shall cause each Company Subsidiary to (A) use its reasonable best efforts to conduct its business and the business of the Company Subsidiaries in the ordinary course in all material respects, and, to the extent consistent therewith, (B) use commercially reasonable efforts to preserve intact its business organizations, goodwill and assets and maintain its rights, franchises and existing relations with customers, suppliers, officers, employees and business associates (it being agreed that no action or omission by the Company or any Company Subsidiary with respect to a matter specifically addressed by any provision of Section 6.1(b) will be deemed a breach of this Section 6.1(a)).
(b) Without limiting the foregoing, and subject to clauses (i) through (v) above, the Company will not and will cause each Company Subsidiary not to:
(i) issue, sell or otherwise permit to become outstanding, or authorize the creation of, any additional equity or any additional Rights other than the issuance of Company Common Stock in respect of the vesting, settlement or exercise of Company RSUs, Company PSUs and Company SARs outstanding as of the date hereof and other than in accordance with Section 6.1(b)(xii);
(ii) (A) split, combine or reclassify any of its equity interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its equity interests, or (B) repurchase, redeem or otherwise acquire, or permit any Company Subsidiary to purchase, redeem or otherwise acquire, any membership, partnership or other equity interests or Rights, except as required by the terms of the Company Stock Plans and any related award agreements outstanding and in effect as of the date hereof in accordance with their terms as in effect on the date hereof or to satisfy any Tax withholding obligations of the holder thereof or as required by the terms of its securities outstanding on the date of this Agreement until (or granted following the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth this Agreement in Section 6.01 of the Disclosure Schedule accordance with this Agreement) or as contemplated by any Company Benefit Plan;
(iii) (A) sell, lease, sublease, license, sublicense, abandon, waive, relinquish, transfer, pledge, abandon, assign, swap, mortgage or otherwise dispose of or subject to any Lien all or any material portion of its assets, businesses or properties other provision than (1) any sales, leases, or dispositions of assets (other than Intellectual Property) in the ordinary course of business consistent with past practice, including the factoring of receivables in the ordinary course of business consistent with past practice or (2) any distributions expressly permitted under Section 6.1(b)(iv) or (3) any non-exclusive licenses or sublicenses of Intellectual Property granted to customers for the use of, or in connection with, Company products in the ordinary course of business consistent with past practice; (B) acquire (by merger or otherwise) or lease any assets or all or any portion of (or interests in) the business or property of any other entity; provided that, for the avoidance of doubt, this Agreement, the Plan shall not restrict purchases of Liquidation and the Settlement Agreement, the businesses of products or supplies by the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except Subsidiaries in the ordinary course of business; (iiiC) merge, consolidate or enter into any other business combination transaction with any Person (other than as permitted by the foregoing clause (B)); or (D) convert from a limited partnership, limited liability company or corporation, as the case may be, to any other business entity;
(iv) make or declare dividends or distributions (whether in cash, assets, stock, other securities or otherwise) to (A) the holders of Company Common Stock or any Company Subsidiary or (B) any other equityholders or Rights holders of the Company or any Company Subsidiary (other than any dividend or distribution from a wholly owned Company Subsidiary to the Company or to any other wholly owned Company Subsidiary);
(v) amend the Company’s or any Company Subsidiary’s Organizational Documents as in effect on the date of this Agreement;
(vi) enter into any contract Company Specified Contract that is outside the ordinary course of business;
(vii) modify, amend, terminate or agreement assign, or waive or assign any rights under, any Company Specified Contract in any material manner;
(viii) waive, release, assign, settle or compromise any material Proceeding or settle or compromise any Proceeding if such settlement or compromise (A) involves a material conduct remedy or material injunctive or similar relief, (B) involves an admission of criminal wrongdoing by the Company or any Company Subsidiary, (C) has in any material respect a restrictive impact on the business of the Company or any Company Subsidiary or (D) involving the payment of more than $1,000,000;
(ix) implement or adopt any change in its GAAP accounting principles, practices or methods, other than as may be required by GAAP;
(x) fail to use commercially reasonable efforts to maintain, with financially responsible insurance companies, insurance in accordance with the Plan of Liquidation; such amounts and against such risks and losses as is maintained by it at present;
(xi) (A) make, change, revoke, rescind, or otherwise modify any material election relating to Taxes, (ivB) settle, consent to, or compromise any material Proceeding, audit or controversy relating to material Taxes, (C) amend any Tax Return in any material respect, (D) enter into or amend any contract, agreement, commitment or arrangement closing agreement with respect to any matter set forth in this Section 6.01(ematerial Tax, (E) surrender any right to claim a material Tax refund, (F) adopt, change, or otherwise modify any material Tax accounting period or any Tax accounting method, (G) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment; or (H) incur any material Tax liability outside the ordinary course of business or fail to pay any income or other material Tax (including any estimated Tax) that becomes due and payable;
(xii) except as required by applicable Law, expressly required or permitted by clauses this Agreement or required by the terms of any Company Benefit Plan, (iiA) and (iii);
(f) grant or commit to grant to any current or former director, officer, employee, contractor, consultant or service provider any increase the compensation payable to its directors in cash compensation, bonus or officers fringe or hire any employees;
(g) take any actionother benefits, other than actions required by GAAP with respect to employees who are not directors or executive officers in the ordinary course of businessbusiness consistent with past practice or in connection with the Company’s or any Company Subsidiary’s annual merit-based compensation review process or discretionary bonus practices, with respect to accounting policies provided, that no such increase shall exceed 5% of an individual’s annual cash compensation, (B) establish, adopt, enter into, terminate or procedures;
(h) terminate, repeal, amend or otherwise changeamend, or take any action inconsistent to accelerate the vesting or payment of any compensation or benefits under, any Company Benefit Plan, except for amendments to Company Benefit Plans made in the ordinary course of business consistent with past practice that do not materially increase the terms ofexpense of maintaining such plan, (C) grant or amend any equity or equity-based awards except amendments required by existing Company Stock Plans, (D) other than in the ordinary course of business consistent with past practice with respect to non-officer employees, contractors, consultants or service providers, enter into any employment, consulting, change in control, retention or severance agreement with, or grant or provide any severance, change in control, or retention payments or benefits to, any current or former director, officer, employee, contractor, consultant or service provider, (E) hire any officer, employee, contractor or consultant, other than individuals with an annual base salary less than $300,000, or, other than in the ordinary course of business consistent with past practice, terminate the employment or services (other than for cause) of any officer, employee, contractor, consultant or service provider with an annual base salary more than $300,000, or (F) take any action to accelerate the vesting or payment date of any Company equity awards or accelerate the vesting or payment of any compensation or benefits, or the funding of any compensation or benefits, payable, provided or to become payable or provided under a Company Benefit Plan or otherwise;
(xiii) (A) incur, assume, guarantee or otherwise become liable for any Indebtedness (directly, contingently or otherwise), other than borrowings under existing revolving credit facilities in the ordinary course of Liquidationbusiness consistent with past practice, (B) redeem, repurchase, cancel or otherwise acquire any Indebtedness (directly, contingently or otherwise), (C) other than with respect to the existing revolving credit facilities, create any material Lien that is not a Permitted Lien on its property or the property of any Company Subsidiary in connection with any pre-existing Indebtedness, new Indebtedness or lease or (D) make or commit to make any capital expenditures except in the ordinary course of business consistent with past practice;
(xiv) enter into any transaction or Contracts with any Affiliate or other Person that would be required to be disclosed by the Company under Item 404 of Regulation S-K of the SEC;
(xv) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial dissolution or liquidation;
(xvi) make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any wholly owned Company Subsidiary or in connection with indemnification and advancement rights of the Company’s directors and officers) other than loans, advances or capital contributions in the form of trade credit granted to customers in the ordinary course of business consistent with past practice;
(xvii) disclose any material source code or material trade secrets to any Person, except in the ordinary course of business consistent with past practice and pursuant to a non-disclosure agreement;
(xviii) unless required by Law, recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Company or its Subsidiaries;
(xix) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions that could implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Laws;
(xx) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor; or
(xxi) agree or commit to do anything prohibited by clauses (i) announce an intention, enter into any agreement or otherwise make a commitment, to do any through (xx) of the foregoingthis Section 6.1(b).
Appears in 2 contracts
Samples: Merger Agreement (Qad Inc), Merger Agreement (Qad Inc)
Conduct of Business by the Company. Pending the Closing. The Company agrees that, from between the date of this Agreement until and the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as set forth in Section 6.01 5.1(a) of the Company Disclosure Schedule Memorandum or as contemplated specifically permitted by any other provision of this AgreementAgreement (including, without limitation, the Plan provisions of Liquidation each of Sections 5.5 and the Settlement Agreement7.1(e)), unless Parent shall otherwise agree in writing, the businesses of the Company and its subsidiaries shall be conducted inwill, and will cause each of its Subsidiaries to conduct its operations only in the Company ordinary and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance usual course of business consistent with this Agreement, the Settlement Agreement and the Plan of Liquidationpast practice. Without limiting the preceding sentenceforegoing, and as an extension thereof, except as disclosed set forth in Section 6.01 5.1(a) of the Company Disclosure ScheduleMemorandum or as specifically permitted by any other provision of this Agreement (including, prior to without limitation, the date that new directors are appointed to the Board pursuant to Section 3 provisions of Annex B heretoeach of Sections 5.5 and 7.1(e)), neither the Company nor shall not (unless required by applicable Law), and shall not permit any of its subsidiaries shallSubsidiaries 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:
(ai) amend or otherwise change its Certificate certificate of Incorporation incorporation or By-laws bylaws or equivalent organizational documents;
(bii) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant grant, transfer, or encumbrance of, (i) of any shares of any class of capital stock of, or other ownership interest of Equity Interests in, the Company or any of its subsidiariesSubsidiaries 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, convertible securities warrants or other rights of any kind to acquire any shares of such capital stockstock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any phantom interestsuch interest represented by contract right), of the Company or any of its subsidiaries Subsidiaries, other than the issuance of Company Common Stock upon the exercise of Company Options and Company Warrants outstanding as of the date hereof in accordance with their terms and the granting of up to 50,000 options to purchase shares of Company Common Stock in the ordinary course of business consistent with past practice, or (iiB) 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 of its subsidiariesSubsidiaries, 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 outside the ordinary course of business consistent with past practice;
(ciii) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, distribution (whether payable in cash, stock, property or otherwise, a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock;
(div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities;
(iv) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combinationassets) any corporation, partnership, other business organization interest in any person or any division thereof, real property thereof or any material amount assets, other than acquisitions of assets; assets in the ordinary course of business consistent with past practice and any other asset acquisitions for consideration, in the aggregate, not in excess of $250,000 per calendar quarter for the Company and its Subsidiaries taken as a whole, (iiB) except for borrowings under existing credit facilities, 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 personperson (other than a wholly-owned Subsidiary of the Company) for borrowed money, or make any loans or advances, or grant any security interest in any of its assets except for indebtedness for borrowed money incurred in the ordinary course of business; business consistent with past practice or other indebtedness for borrowed money in a principal amount not, in the aggregate, in excess of $200,000 for the Company and its Subsidiaries taken as a whole, (iiiC) enter into terminate, cancel or request any contract material change in, or agreement other than in accordance with the Plan of Liquidation; agree to any material change in, any Company Material Contract, or (ivD) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in that, if fully performed, would not be permitted under this Section 6.01(e) except as permitted by clauses (ii) and (iii5.1(a)(v);
(fvi) 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 3.11(b) of the Company Disclosure Memorandum: (A) increase the compensation or benefits payable or to become payable to its directors or directors, officers or hire employees; (B) grant any employeesrights 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 of its Subsidiaries, 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 (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;
(gvii) take (A) pay, discharge or satisfy any actionmaterial claims, other than actions required by GAAP liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of businessbusiness consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of any material 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 respect to past practice, or (C) delay or accelerate payment of any material 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;
(viii) make any material 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;
(hix) terminatewaive, repealrelease, assign, settle or compromise any material claims, or any material litigation or arbitration;
(x) make any material tax election, settle or compromise any material liability for Taxes, amend any material Tax Return or file any refund for any material amount of Taxes; provided, that the Company shall promptly provide to Parent a copy of any such amended Tax Return or filing for any refund;
(xi) modify, amend or otherwise changeterminate, or take waive, release or assign any action inconsistent material rights or claims with respect to any confidentiality or standstill agreement to which the terms ofCompany is a party;
(xii) knowingly act in a manner intended or reasonably expected to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article VI not being satisfied, the Plan of Liquidationexcept as otherwise permitted by this Agreement or required by applicable Law or any judicial or regulatory authority; or
(ixiii) announce an intention, authorize or enter into any agreement or otherwise make a commitment, any commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Paradyne Networks Inc), Merger Agreement (Zhone Technologies Inc)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth consented to in Section 6.01 of the Disclosure Schedule or writing by Compass, (ii) as specifically contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses or (iii) as disclosed in Section 4.01 of the Company Disclosure Schedule (with specific reference to the Subsection of this Section 4.01 to which the information stated in such disclosure relates and such other Subsections of this Section 4.01 to the extent a matter is disclosed in such a way as to make its relevance to the information called for by such other Subsection readily apparent), the Company shall, and shall cause its subsidiaries shall be conducted into, carry on their respective businesses in the ordinary course consistent with past practice and use their commercially reasonable efforts to comply with all applicable laws, rules and regulations and, to the Company extent consistent therewith, use their commercially reasonable efforts to preserve their assets and its subsidiaries shall not take any action except intechnology and preserve their relationships with customers, suppliers, licensors, licensees, distributors and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance others having business dealings with this Agreement, the Settlement Agreement and the Plan of Liquidationthem in all material respects. Without limiting the preceding sentence, except as disclosed in Section 6.01 generality of the Disclosure Scheduleforegoing, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor shall not, and shall not permit any of its subsidiaries shall, directly or indirectlyto:
(ai) amend (w) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than quarterly cash dividends consistent with past practice, (x) purchase, redeem or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) acquire any shares of any class of capital stock or any other ownership securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, except with respect to redemption requirements pursuant to the Company Stock Plans, (y) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities or (z) liquidate or merge with any subsidiaries of the Company;
(ii) issue, deliver, sell, pledge or otherwise transfer or encumber any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such shares, voting securities or convertible securities or any stock appreciation rights or other rights that are linked to the price of Company Common Stock (other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options pursuant to the Benefit Plans that are in existence on the date of this Agreement);
(iii) amend its articles of incorporation or bylaws (or similar organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by any other manner, any assets constituting a business or any corporation, partnership, joint venture or association or other entity or division thereof, or any direct or indirect interest in any of the foregoing, or (B) any assets other than purchases of assets in the ordinary course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback, mortgage or otherwise encumber or subject to any Lien (except for purchase money security interests and other Liens arising in the ordinary course of business) or otherwise dispose of any of its properties or assets or any interest therein, except sales of (i) inventory and obsolete assets in the ordinary course of business consistent with past practice and (ii) immaterial assets in the ordinary course of business consistent with past practice (but specifically excluding joint venture investments);
(vi) (x) repurchase, accelerate, prepay or incur any indebtedness or guarantee any indebtedness of another person or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue guarantee any debt securities of another person, enter into any "keep well" or assume, guarantee other agreement to maintain any financial statement condition of another person or endorse, or otherwise as an accommodation become responsible for, enter into any arrangement having the obligations economic effect of any personof the foregoing, or make any loans or advances, or grant any security interest in any of its assets except other than in the ordinary course of business; business consistent with past practice, provided that the aggregate amount of indebtedness of the Company shall not exceed $70,000,000 as of the Specified Date, (iiiy) make any loans, advances or capital contributions to, or investments in, any other person, other than any direct or indirect wholly owned subsidiary of the Company, or (z) enter into any contract hedging agreement or other financial agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with designed to protect the company against fluctuations in commodities prices or current exchange rates, except agreements or arrangements in respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase of contractual commitments of the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or Company entered into in the ordinary course of business, business consistent with respect to accounting policies or procedurespast practice;
(hvii) terminateincur or commit to incur any capital expenditures, repealwhether by acquisition or internal investment, amend or any obligations or liabilities in connection therewith, other than capital expenditures which are reflected on the Company's fiscal 2001 budget;
(viii) pay, discharge, settle or satisfy any claims (including claims of stockholders), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), in excess of $500,000 in the aggregate other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of trade payables and other similar liabilities and of claims, liabilities or obligations reflected, reserved against or otherwise change, disclosed in the most recent audited financial statements (or take any action inconsistent with the terms of, the Plan of Liquidation; or
(inotes thereto) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.Company
Appears in 2 contracts
Samples: Merger Agreement (Morrison Management Specialists Inc), Merger Agreement (Yorkmont One Inc)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as set forth in Section 6.01 of the Disclosure Schedule or as otherwise contemplated by any other provision of this Agreement, the Plan of Liquidation Company shall use its commercially reasonable efforts to, and the Settlement Agreement, the businesses shall cause each of the Company Subsidiaries to use its commercially reasonable efforts to, carry on their respective businesses in the usual, regular and its subsidiaries shall be conducted inordinary course, consistent with past practice, and use their commercially reasonable efforts to preserve intact their present business organizations, keep available the Company services of their present officers and its subsidiaries shall not take any action except in, employees and Purchaser shall not cause the Company preserve their relationships with tenants and its subsidiaries to take any action except in, accordance others having business dealings with this Agreement, the Settlement Agreement and the Plan of Liquidationthem. Without limiting the preceding sentence, except as disclosed in Section 6.01 generality of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoforegoing, neither the Company nor any of its subsidiaries shallthe Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the transactions contemplated hereby, as set forth in Section 5.1 of the Company Disclosure Schedule or to the extent that Parent shall otherwise consent in writing) (it being understood that Parent shall respond within five (5) Business Days to the Company’s communications soliciting such consent from the Parent):
(a) (i) split, combine or reclassify any shares of capital stock of the Company or (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of any shares of capital stock of the Company, except for: (A) a regular, quarterly cash dividend at a rate not in excess of $0.46 per share of Company Common Stock, declared and paid in accordance with past practice; (B) dividends or distributions, declared, set aside or paid by any Company Subsidiary to the Company or any Company Subsidiary that is, directly or indirectly:
, wholly owned by the Company, and (aC) amend or otherwise change distributions required for the Company to maintain its Certificate of Incorporation or By-laws or equivalent organizational documents;status as a REIT pursuant to Section 5.2.
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the for issuance, sale, pledge, disposition, grant issue or encumbrance of, sell or agree or commit to issue or sell (i) any shares whether through the issuance or granting of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities commitments, subscriptions, rights to purchase or other rights otherwise) any stock of any kind to acquire any shares of such capital stock, class or any other ownership interest securities or equity equivalents (including, without limitation, any phantom intereststock appreciation rights) other than the (i) issuance of shares of Company Common Stock upon the exercise of Company Options outstanding on the date of this Agreement in accordance with their present terms, (ii) issuance of shares of Company Common Stock upon the settlement of plan awards in accordance with their present terms.
(c) except as set forth in Section 5.1(c) of the Company Disclosure Schedule (which sets forth all existing obligations in effect to purchase or sell real property and the purchases or sale price thereof), acquire, sell, encumber, transfer or dispose of any assets outside the ordinary course of business which are material to the Company or any of the Company Subsidiaries (whether by asset acquisition, stock acquisition or otherwise), except pursuant to obligations in effect on the date hereof;
(d) except in the ordinary course of business pursuant to credit facilities or other arrangements in existence as of the date hereof (including, without limitation, (i) payment of regular quarterly dividends as per Section 5.1(a) and (ii) contractual obligations of the Company or Company Subsidiaries to other Company Subsidiaries), incur any amount of indebtedness for borrowed money, guarantee any indebtedness of a third party, issue or sell debt securities, make any loans, advances or capital contributions, mortgage, pledge or otherwise encumber any material assets, or create or suffer any material lien thereupon;
(e) except pursuant to any mandatory payments under any credit facilities in existence on the date hereof, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(f) (i) enter into any new lease for vacant space at a Company Property; (ii) terminate, modify or amend any Facility Lease; (iii) terminate or grant any reciprocal easement or similar agreements affecting a Company Property (unless contractually obligated to do so or in connection with a transaction otherwise permitted by this Agreement); (iv) consent to or enter into the sublease or assignment of any Facility Lease.
(g) change any of the accounting principles or practices used by it (except as required by GAAP, in which case written notice shall be provided to Parent and MergerCo prior to any such change);
(h) except as required by law, (i) enter into, adopt, amend or terminate any Employee Program, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries and one or more of their trustees, directors or executive officers, or (iii) except for normal increases in the ordinary course of business consistent with past practice, increase in any manner the compensation or fringe benefits of any non-executive officer or employee or pay any benefit not required by any Employee Program or arrangement as in effect as of the date hereof;
(i) grant to any officer, director, trustee or employee the right to receive any new severance, change of control or termination pay or termination benefits, grant any increase in the right to receive any severance, change of control or termination pay or termination benefits or enter into any new employment, loan, retention, consulting, indemnification, termination, change of control, severance or similar agreement with any officer, director, trustee or employee other than the grant of compensation and fringe benefits to any non-executive officer or employee hired after the date of this Agreement; provided, however; that the Company may accelerate the vesting and/or the payment of any existing benefits or awards and/or make any amendments to existing benefits, agreements or awards in order to facilitate such accelerated vesting and/or payments;
(j) except to the extent required to comply with its obligations hereunder or with applicable law, amend its declaration of trust or bylaws, limited partnership or limited liability company agreements, or similar charter, organizational or governance documents;
(k) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization (other than the Merger or plans of complete or partial liquidation or dissolution of inactive Company Subsidiaries);
(l) except as set forth in Section 5.1(l) of the Company Disclosure Schedule, provided that such settlement does not exceed the amounts accrued therefor in the most recent balance sheet of the Company set forth in the Company SEC Reports, settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises for litigation where the amount paid (after giving effect to insurance proceeds actually received) in settlement or compromise does not exceed $10,000;
(m) amend any term of any outstanding security of the Company or any Company Subsidiary;
(n) other than in the ordinary course of business, modify or amend any Material Contract to which the Company or any Company Subsidiary is a party or waive, release or assign any material rights or claims under any such Material Contract;
(o) permit any insurance policy naming the Company or any of its subsidiaries or (ii) any assets of officers or trustees as a beneficiary or an insured or a loss payable payee, or the Company Company’s directors and officers liability insurance policy, to be canceled, terminated or any of its subsidiaries;
(c) except in accordance allowed to expire, unless such entity shall have obtained an insurance policy with the Plan of Liquidation substantially similar terms and solely conditions to the extent necessary for the Company to qualify as a REITcanceled, declare, set aside, make terminated or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationexpired policy; or
(ip) announce an intention, enter into any an agreement or otherwise make a commitment, to do take any of the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Geo Group Inc), Merger Agreement (CentraCore Properties Trust)
Conduct of Business by the Company. The Company agrees thatExcept as required by applicable law or regulation and except as otherwise contemplated by this Agreement, from until the date earlier of the termination of this Agreement until or the date that new directors are appointed to Effective Time, the Board pursuant to Section 3 Company shall, and cause each of Annex B heretoits subsidiaries to, except conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 5.1 of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by Parent, in writing, after the date that new directors are appointed to hereof and until the Board pursuant to Section 3 earlier of Annex B heretothe termination of this Agreement or the Effective Time, neither the Company nor shall not and shall not permit any of its subsidiaries shall, directly or indirectlyto:
(a) amend or otherwise change its Certificate of Incorporation or Byby-laws or equivalent organizational documentslaws;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, of (i) any shares of any class of its capital stock or other ownership interest of the Company or any of its subsidiariesclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (includinginterest, without limitationthereof, any phantom interest), other than exercises of Company warrants or Company Stock Options by the Company or any of its subsidiaries holders thereof in accordance with their terms or (ii) any assets of the Company or any of its subsidiariesassets, tangible or intangible;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets or assets) any other business combination) interest in any corporation, partnership, partnership or other business organization or division thereof or any division thereofassets, real or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any material amount of assets; other person, (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)Company Material Contract;
(f) increase the compensation payable to its directors make any capital expenditure in excess of $50,000 or officers enter into any contract or hire any employeescommitment therefore;
(g) take amend, terminate or extend any action, Company Material Contract;
(h) delay or accelerate payment of any account payable or other than actions required by GAAP liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business, business consistent with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationpast practice; or
(i) announce an intentionagree, enter into any agreement in writing or otherwise make a commitmentotherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty contained in Article III untrue or incorrect.
Appears in 2 contracts
Samples: Merger Agreement (Front Porch Digital Inc), Merger Agreement (Front Porch Digital Inc)
Conduct of Business by the Company. The (a) From the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 5.1(a) of the Company agrees thatDisclosure Schedule or (z) as otherwise contemplated, required or permitted by this Agreement, unless Parent shall otherwise consent (which consent shall not be unreasonably withheld), the Company shall maintain the status of the Company as a REIT and shall, and shall cause each of the Company Subsidiaries to, use its commercially reasonable efforts (i) to conduct its business in the ordinary course consistent with past practice in all material respects, (ii) to preserve intact in all material respects its business organization and goodwill and relationship with customers, third party payors, including Governmental Entities, and others with which it has material business dealings and (iii) to maintain its material assets and properties in adequate working condition and good repair, ordinary wear and tear excepted.
(b) In addition to and without limiting the generality of the foregoing, from the date of this Agreement until the date that new directors are appointed to earlier of the Board Effective Time and the date, if any, on which this Agreement is earlier terminated pursuant to Section 3 of Annex B hereto8.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 6.01 5.1(b) of the Company Disclosure Schedule or (z) as contemplated otherwise contemplated, required or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreementunless Parent shall otherwise consent (which consent shall not be unreasonably withheld), the businesses of the Company and its subsidiaries shall be conducted innot, and the Company and its subsidiaries shall not take permit any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallSubsidiaries to, directly or indirectly:
(ai) amend or otherwise change propose or agree to amend, in any material respect, any of its Certificate Constituent Documents or waive the stock ownership limit under the charter of Incorporation or By-laws or equivalent organizational documentsthe Company;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely subject to the extent necessary for the Company to qualify as a REITSection 6.15, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock or property) in respect of any of its capital stock, property except for (A) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Common Stock in an amount not exceeding $0.18 per share and (B) the declaration and payment by the Company of quarterly cash dividends on its outstanding Company Preferred Stock in an amount equal to $0.3828125 per share; provided that notwithstanding the restriction on dividends and other distributions in this Section 5.1(b)(ii), the Company and any Company Subsidiary shall be permitted to make distributions, including under Sections 858 or otherwise860 of the Code, with respect reasonably necessary for the Company to maintain its status as a REIT under the Code (or applicable state Law) and avoid or reduce the imposition of any entity level income or excise Tax under the Code (or applicable state Law);
(iii) adjust, split, combine or reclassify any of its capital stock or issue or propose or authorize the issuance of any other securities (including options, warrants or any similar security exercisable for, or convertible into, such other security) in lieu of, or in substitution for, shares of its capital stock;
(div) reclassify(A) repurchase, combine, split, subdivide redeem or redeemotherwise acquire any shares of the capital stock of the Company or any of the Company Subsidiaries, or purchase any other equity interests or any rights, warrants or options to acquire any such shares or interests, except for the withholding of shares to satisfy withholding Tax obligations in respect of Restricted Stock Awards outstanding as of the date of this Agreement or awarded after the date of this Agreement in accordance with their terms and the Incentive Plans in effect on the date of this Agreement or (B) acquire or dispose of any securities of any third party that are publicly traded or any rights, warrants or options to acquire any such securities;
(v) issue, sell, grant, pledge, amend, grant any rights in respect of or otherwise acquire, directly or indirectly, encumber any shares of its capital stock;
stock or other securities (iincluding any options, warrants or any similar security exercisable for, or convertible into, such capital stock or similar security) acquire or make any changes (includingby combination, without limitation, by merger, consolidation, reorganization, liquidation or otherwise) in the capital structure of the Company or any of the Company Subsidiaries, except for the issuance of Company Common Shares in connection with the exercise of Options or the vesting or settlement of other equity or equity-linked awards outstanding as of the date of this Agreement;
(vi) merge or consolidate with any other Person or acquire any material assets or make a material investment in (whether through the acquisition of stock, assets or otherwise) any other Person, except for acquisitions set forth in Section 5.1(b)(vi) of the Company Disclosure Schedule;
(vii) sell, lease, license, subject to a material Lien, except for a Permitted Lien, or otherwise dispose of any assets (excluding cash and cash equivalents for payables arising in the ordinary course), or any product lines or businesses of the Company or any Company Subsidiaries (including capital stock or assets or other equity interests of any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (iiCompany Subsidiary) except for borrowings under existing credit facilities(A) dispositions of immaterial assets (other than real property) that are obsolete, incur surplus, uneconomical or otherwise no longer useful in the business of the Company and the Company Subsidiaries for a purchase price that, in each case, represents the market value of such asset in all material respects and for amounts not to exceed $25,000 in the aggregate or (B) dispositions, leases or Liens set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule, which, in the case of dispositions of assets, shall be subject to a minimum sale amount set forth in Section 5.1(b)(vii) of the Company Disclosure Schedule;
(viii) make any loans, advances or capital contributions to any other Person, except for loans, advances or capital contributions set forth in Section 5.1(b)(viii) of the Company Disclosure Schedule;
(ix) create, incur, guarantee or assume any indebtedness (excluding trade payables arising in the ordinary course), except for indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution and delivery of this Agreement and set forth in Section 5.1(b)(ix) of the Company Disclosure Schedule or issue any debt securities as otherwise described in such section of the Company Disclosure Schedule;
(x) make or assume, guarantee or endorsecommit to make capital expenditures other than (A) in the individual amounts set forth in Section 5.1(b)(x) of the Company Disclosure Schedule, or otherwise (B) provided that the Company provides prompt written notice to Parent, (i) in conjunction with emergency repairs or (ii) as an accommodation become responsible forrequired by Law;
(xi) except as required by Contracts in effect prior to the execution and delivery of this Agreement or Company Benefit Plans or as permitted by Section 5.1(b)(xi) of the Company Disclosure Schedule, (A) increase the obligations of any person, compensation or make any loans other benefits payable or advances, provided to the Company’s directors or grant any security interest in any of its assets except in the ordinary course of businessemployees; (iiiB) enter into any contract employment, bonus, change of control, severance or retention agreement with any employee of the Company; (C) establish, adopt, or enter into any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries; (D) amend any plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except to make changes of an administrative nature that would not result in a material increase in cost to the Company or as is required to comply with Section 409A of the Code; or (E) terminate the employment of any Company employee, other than for “cause”;
(xii) (A) settle or compromise any material claim, audit, arbitration, suit, investigation, complaint or other proceeding, except for any settlements or compromises set forth in Section 5.1(b)(xii) of the Company Disclosure Schedule, which settlements or compromises involve total aggregate payments of less than $500,000 in the aggregate or (B) enter into any consent decree, injunction or similar restraint or form of equitable relief in settlement of any material claim or audit that would materially restrict the operations of the business after the Effective Time;
(xiii) (A) modify or amend in any materially adverse respect or terminate any Material Contract (other than any termination or renewal in accordance with the Plan terms of Liquidation; or any existing Material Contract that occurs automatically without any action other than notice of renewal), (ivB) enter into any successor agreement to an expiring Material Contract that changes the terms of the expiring Material Contract in a way that is materially adverse to the Company or any Company Subsidiary or (C) enter into any new agreement that would have been considered a Material Contract if it were entered into at or prior to the date hereof;
(xiv) except as required by applicable Law or changes in GAAP, materially change any of its accounting policies for financial accounting purposes;
(xv) enter into any Company Tax Protection Agreement; make, change or rescind any material election relating to Taxes; change a material method of Tax accounting; file or amend any contractmaterial Tax Return, agreementsettle or compromise any material federal, commitment state, local or arrangement foreign Tax liability, audit, claim or assessment; enter into any closing agreement related to a material amount of Taxes; knowingly surrender any right to claim any material Tax refund; give or request any waiver of a statute of limitations with respect to any matter material Tax Return except, in each case, (A) to the extent required by Law or (B) to the extent necessary (x) to preserve the Company’s qualification as a REIT under the Code or (y) to qualify or preserve the status of any Company Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xvi) terminate, cancel, amend or modify any insurance policies maintained by it covering the Company or any of the Company Subsidiaries or their respective properties which is not replaced by a comparable amount of insurance coverage;
(xvii) enter into any new line of business;
(xviii) take any action that would, or fail to take any action, the failure of which to be taken would, reasonably be expected to cause the Company to fail to qualify as a REIT or any Company Subsidiary to cease to be treated as any of (A) a partnership or disregarded entity for United States federal income tax purposes or (B) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;
(xix) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of the Company Subsidiaries;
(xx) incur any Expenses in connection with this Agreement and the transactions contemplated by this Agreement or pay any Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement in excess of the amounts set forth in Section 5.1(b)(xx) of the Company Disclosure Schedule, in each case without providing Parent with reasonable advance notice and consulting with Parent regarding incurring or paying such Expenses in excess of such amounts;
(xxi) (A) modify or amend the engagement letters entered into with the Company Financial Advisors to increase the compensation payable by the Company thereunder or (B) enter into any new Contract with the Company Financial Advisors; or
(xxii) authorize any of, or commit, resolve, propose or agree to take any of, the foregoing actions.
(c) Notwithstanding anything to the contrary set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase Agreement, nothing in this Agreement shall prohibit the compensation payable Company from taking any action, or refraining to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP at any time or from time to time if, in the ordinary course reasonable judgment of businessthe Company Board, with respect to accounting policies such action or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
inaction is reasonably necessary (i) announce an intention, enter into for the Company to avoid or to continue to avoid incurring entity level income or excise Taxes under the Code (or applicable state Law) or to maintain its qualification as a REIT under the Code for any agreement period or portion thereof ending on or prior to the Effective Time or (ii) to establish or maintain any exemption from or otherwise make avoid the imposition of any requirement that the Company or any Company Subsidiary be registered as an investment company under the Investment Company Act, including in the case of clause (ii), making dividend or any other actual, constructive or deemed distribution payments to stockholders of the Company in accordance with this Agreement or otherwise as permitted pursuant to Section 5.1(b)(ii).
(d) Notwithstanding anything to the contrary set forth in this Agreement (including this Section 5.1), nothing shall prevent the Company or any of its Subsidiaries from taking or failing to take any commercially reasonable action in response to a commitmentCOVID-19 Measure that would otherwise violate or breach this Agreement, which response shall not be deemed a breach of this Agreement; provided, however, that, to do any the extent reasonably practicable, the Company must provide reasonable advance written notice to Parent with reasonable detail of the foregoingsuch response prior to such response.
Appears in 2 contracts
Samples: Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Monmouth Real Estate Investment Corp)
Conduct of Business by the Company. Pending the Acquisition. The Company agrees Sellers agree that, from the date of this Agreement until the date that new directors are appointed to earlier of the Board Closing and termination of this Agreement pursuant to Section 3 of Annex B heretoArticle VIII, except as set forth (x) required by applicable Law or (y) expressly contemplated or permitted by this Agreement, unless the Purchaser shall otherwise consent in Section 6.01 writing (which consent shall not be unreasonably withheld, delayed or conditioned), the Sellers shall procure that (i) the businesses of the Disclosure Schedule Group Companies shall be conducted in the ordinary course of business in a manner consistent with past practice; and (ii) the Company shall use its commercially reasonable efforts to preserve the assets and the business organization of the Group Companies in all material respects, to keep available the services of the current officers and key employees of the Group Companies and to maintain in all material respects the current relationships of the Group Companies with existing customers, suppliers and other persons with which any Group Companies has material business relations as of the date hereof. Without limiting the generality of the foregoing paragraph, from the date of this Agreement until the earlier of the Closing and termination of this Agreement pursuant to Article VIII, except as (x) required by applicable Law or as (y) expressly contemplated or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries Sellers shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date procure that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallno Group Company, directly or indirectly:, do or propose to do any of the following without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) amend or otherwise change its Certificate memorandum and articles of Incorporation or By-laws association or equivalent organizational documents;
(b) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesGroup Company, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any property or assets (whether real, personal or mixed, and including leasehold interests and intangible property) of any Group Company with a value or purchase price (including the Company or any value of its subsidiariesassumed liabilities) in excess of US$1,000,000, except in the ordinary course of business;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stockshares (other than dividends or other distributions from any Subsidiary of the Company to the Company or any of its other Subsidiaries);
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its share capital stockor securities or other rights exchangeable into or convertible or exercisable for any of its share capital;
(ie) acquire (includingeffect or commence any liquidation, without limitationdissolution, by scheme of arrangement, merger, consolidation, amalgamation, restructuring, reorganization, public offering or similar transaction involving any Group Company, or public offer of any new Subsidiary, other than as contemplated by this Agreement;
(f) acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or otherwise, any other business combinationassets, securities or properties, in aggregate, with a value or purchase price (including the value of assumed liabilities) in excess of US$1,000,000 in any corporation, partnership, other business organization transaction or related series of transactions;
(g) incur any division thereof, real property additional Company Debt or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur guarantee 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 personThird Party except for the incurrence or guarantee of indebtedness not in an aggregate amount in excess of US$1,000,000;
(h) other than expenditures necessary to maintain assets in good repair consistent with the past practice or pursuant to the Company’s operating plan in effect as of the date hereof, authorize, or make any loans commitment with respect to, any single capital expenditure which is in excess of US$10,000,000 or advancescapital expenditures which are, in the aggregate, in excess of US$1,000,000 for the Group Companies taken as a whole;
(i) except as required pursuant to any Company Employee Plan or any employment agreement or compensatory agreements in effect as of the date of this Agreement, or grant any security interest in any of its assets except in the ordinary course of business; this Agreement, (iiii) enter into any contract new employment or agreement compensatory agreements (including the renewal of any such agreements), or terminate any such agreements, with any director, officer, employee or consultant of any Group Company other than the hiring or termination of employees below the vice president level or its equivalent (e.g. the head of business unit) or with an annual compensation of less than US$200,000, (ii) grant or provide any severance or termination payments or benefits to any director, officer, employee or consultant of any Group Company except as required by applicable Law, (iii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to any director, officer, employee or consultant of any Group Company except such increases or payments, in accordance with the Plan aggregate, do not cause an increase in the labor costs of Liquidation; the Group Companies, taken as a whole, by more than 5%, or (iv) enter into forgive any loans to any director, officer, employee or amend consultant of any contract, agreement, commitment or arrangement Group Company;
(j) make any changes with respect to any matter set forth in this Section 6.01(e) financial accounting policies or procedures, including changes affecting the reported consolidated assets, liabilities or results of operations of the Group Companies, except as permitted required by clauses changes in statutory or regulatory accounting rules or GAAP or regulatory requirements with respect thereto;
(k) enter into, amend, modify, consent to the termination of, or waive any material rights under, any Company Material Contract (or any Contract that would be a Company Material Contract if such Contract had been entered into prior to the date hereof) that calls for annual aggregate payments of US$1,000,000 or more which cannot be terminated without material surviving obligations or material penalty upon notice of ninety (90) days or less;
(l) enter into any Contract between the Company or any of its Subsidiaries, on the one hand, and any “related party” (as such term is defined in Item 404 of Regulation S-K promulgated under the Exchange Act) of the Company or any of its Subsidiaries, on the other hand, except for (i) Contracts solely between the Company and/or wholly-owned Company Subsidiaries and (ii) and (iiiContracts permitted under Section 5.01(i));
(fm) increase the compensation payable to its directors terminate or officers cancel, let lapse, or hire amend or modify in any employees;
(g) take any actionmaterial respect, other than actions required by GAAP or renewals in the ordinary course of business, any material insurance policies maintained by it which are not promptly replaced by a comparable amount of insurance coverage;
(n) settle any Action other than any settlement involving the payment of monetary damages not in excess of US$1,000,000;
(o) fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and Taxes required or advisable to maintain and protect its interest in each and every item of Intellectual Property owned by any Group Company;
(p) enter into, or propose to enter into, any transaction involving any material earn-out or similar payment payable by any Group Company, to any Third Party, other than payments in connection with purchases of vehicles, plant, equipment, supplies or computers in the ordinary course of business;
(q) engage in the conduct of any new line of business material to the Company and its Subsidiaries, taken as a whole;
(r) make or change any material Tax election, materially amend any Tax return (except as required by applicable Law), enter into any material closing agreement with respect to accounting policies Taxes, surrender any right to claim a material refund of Taxes, settle or procedures;
(h) terminate, repeal, amend finally resolve any material controversy with respect to Taxes or otherwise change, or take materially change any action inconsistent with the terms of, the Plan method of LiquidationTax accounting; or
(is) 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: Share Purchase Agreement (Renren Inc.), Share Purchase Agreement (Kaixin Auto Holdings)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as required by applicable Law, as expressly permitted by this Agreement or any Ancillary Agreement, as contemplated by the transactions contemplated hereby or thereby, as set forth in Section 6.01 5.1 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreementto the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed), the Plan of Liquidation Company will, and the Settlement Agreement, the businesses will cause each Subsidiary of the Company and to, conduct its subsidiaries shall be conducted inbusiness in all material respects in the ordinary course of business consistent with past practices, and the Company and its subsidiaries shall not take any action except inwill not, and Purchaser shall not will cause each Subsidiary of the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlynot to:
(a) amend split, combine or otherwise change its Certificate reclassify any shares of Incorporation capital stock of the Company or Byany non-laws or equivalent organizational documentswholly owned Subsidiary of the Company;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the for issuance, saleissue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, pledgewarrants, dispositioncommitments, grant subscriptions, rights to purchase or encumbrance of, (iotherwise) any shares stock of any class of capital or any other securities or equity equivalents (including stock or other ownership interest appreciation rights) of the Company or any Subsidiary of its subsidiaries, the Company;
(c) amend or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), otherwise change the Organizational Documents of the Company or any of its subsidiaries or (ii) any assets Subsidiary of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockCompany;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets or any other business combinationassets) any corporation, partnership, other business organization Equity Interest in any Person or any division thereofthereof or other assets or form any Subsidiary, real property or other than in connection with the Spin-Off and, in the case of any material amount acquisition of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except other than in the ordinary course of business; ;
(iiie) make any material Tax election or enter into any contract settlement or agreement other than in accordance with the Plan compromise of Liquidation; any material liability for Taxes (including any audit, examination or (iv) enter into or amend any contract, agreement, commitment or arrangement litigation with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iiiTaxes), or file a material amendment to a Tax Return or for a material refund of Taxes;
(f) increase the compensation payable to its directors establish, adopt, amend in any material respect or officers or hire terminate any employees;
(g) take any actionCompany Benefit Plan, other than actions required by GAAP to comply with applicable Law (including Code Section 409A), in accordance with Section 5.11 or in the ordinary course of businessbusiness consistent with past practices;
(g) commence any material litigation or settle any material claim, with respect to accounting policies litigation, action or proceduresproceeding;
(h) terminate, repeal, amend incur or otherwise change, or guarantee any indebtedness for money borrowed outside of the ordinary course of business consistent with past practices;
(i) take any action inconsistent with that is intended to result in any of the terms of, Company’s representations and warranties set forth in this Agreement being or becoming untrue such that the Plan condition set forth in Section 6.2(a) shall be incapable of Liquidationsatisfaction; or
(ij) announce an intention, enter into any an agreement or otherwise make a commitment, to do take any of the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Smith a O Corp), Merger Agreement (Smith Investment Co)
Conduct of Business by the Company. The Company agrees that, (a) During the period from the date of this Agreement until to the Effective Time, except as otherwise contemplated by this Agreement, the Company shall use its commercially reasonable efforts to, and shall cause each of the Company Subsidiaries to use its commercially reasonable efforts to, carry on their respective businesses in the usual, regular and ordinary course, consistent with the requirements of Law and past practice, and use their commercially reasonable efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue to perform and comply with the terms of existing contracts as in effect on the date that new directors are appointed to hereof (for the Board pursuant to Section 3 term provided in such contracts). Without limiting the generality of Annex B hereto, the foregoing and except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 4.1(a) of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly the Company Subsidiaries will (except as expressly permitted by this Agreement or indirectly:as contemplated by the transactions contemplated hereby or to the extent that Parent shall otherwise consent in writing):
(ai) amend (A) declare, set aside or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of any of its capital stock (other than dividends or distributions declared, set aside or paid by any wholly-owned Company Subsidiary consistent with past practice), (B) split, combine or reclassify any of its capital stock or (C) repurchase, redeem or otherwise change acquire any of its Certificate securities, except, in the case of Incorporation clause (C), for the acquisition of Company Shares from holders of Options in full or By-laws or equivalent organizational documentspartial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement;
(bii) authorize for issuance, issue, sell, pledgedeliver or agree or commit to issue, dispose of, grant, encumber, sell or authorize deliver (whether through the issuance, sale, pledge, disposition, grant issuance or encumbrance of, (i) any shares granting of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities commitments, subscriptions, rights to purchase or other rights otherwise) any stock of any kind to acquire any shares of such capital stock, class or any other ownership interest securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, any phantom interest), stock appreciation rights) (other than the issuance of Company Shares upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms or under the Company or any of Rights Plan in accordance with its subsidiaries or (ii) any assets of the Company or any of its subsidiariesterms);
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(iiii) acquire (including, without limitation, by merger, consolidation, consolidation or acquisition of stock or assets assets) or any other business combination) agree to acquire, directly or indirectly, any corporation, partnership, limited liability company, or other business organization or any division or product line thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or ;
(iv) enter into sell, lease, encumber, transfer or amend dispose of any contractassets, agreementincluding Proprietary Rights, commitment directly or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any actionindirectly, other than actions required by GAAP or sales of inventory in the ordinary course of business, in amounts exceeding, in the aggregate, $2,500,000, except pursuant to obligations in effect on the date hereof and identified in Section 4.1(a)(iv) of the Company Disclosure Schedule;
(v) authorize any single capital expenditure in excess of $250,000 or aggregate capital expenditures in excess of the amounts set forth in the written budget attached hereto as Section 4.1(a)(v) of the Company Disclosure Schedule;
(vi) incur any amount of indebtedness for borrowed money, guarantee any indebtedness, guarantee (or become liable for) any debt of others, make any loans, advances or capital contributions or issue or sell debt securities or warrants or rights to acquire any debt securities, other than in the ordinary course of business consistent with past practice;
(vii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (A) in the ordinary course of business consistent with past practice or (B) as expressly contemplated herein;
(viii) change any of the accounting principles or practices used by it (except as required by GAAP, in which case written notice shall be provided to Parent and Acquisition Sub prior to any such change), or restate, or become obligated to restate, the financial statements included in the Company 10-K or Company 10-Qs (except as required by GAAP or a Governmental Entity, in which case written notice shall be provided to Parent and Acquisition Sub prior to any such restatement);
(ix) except as required by Law, (i) enter into, adopt, amend or terminate any Employee Plan (other than any workers compensation, medical or health benefit plan that the Company or any Company Subsidiary proposes to enter into, adopt, amend or terminate in the ordinary course of business consistent with past practice), (ii) enter into, adopt, amend or terminate any other agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries and one or more of their directors or officers, or (iii) except for normal increases in the ordinary course of business consistent with past practice, increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any Employee Plan or arrangement as in effect as of the date hereof;
(x) cause, permit or propose any amendments to the Articles of Incorporation or By-Laws of the Company or the Rights Agreement, except as expressly provided by the terms of this Agreement;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization of the Company or any of the Company Subsidiaries (other than the Merger or plans of complete or partial liquidation or dissolution of inactive Company Subsidiaries);
(xii) make any Tax election or settle or compromise any material federal, state, local or foreign Tax liability, change its annual tax accounting period, change any method of Tax accounting, enter into any closing agreement relating to any Tax, surrender any right to claim a Tax refund, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment;
(xiii) settle or compromise any pending or threatened suit, action or claim where the amount paid in settlement or compromise (after application of any insurance proceeds) exceeds $500,000 or, except as set forth in Section 4.1(a)(xiii) of the Company Disclosure Schedule, that would result in a full release of claims or rights to coverage under any insurance policy;
(xiv) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988;
(xv) enter into or modify any material agreement with any other Person;
(xvi) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to accounting policies any confidentiality agreement to which the Company or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationCompany Subsidiary is a party; or
(ixvii) announce an intention, enter into any agreement or otherwise make a commitment, obligate itself to do any of the foregoing actions.
(b) During the period from the date of this Agreement to the Effective Time, except as otherwise contemplated by this Agreement, Parent shall use its commercially reasonable efforts to, and shall cause each of the Parent Subsidiaries to use its commercially reasonable efforts to, carry on their respective businesses in the usual, regular and ordinary course, consistent with the requirements of Law and past practice. Without limiting the generality of the foregoing, neither Parent nor any of the Parent Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the transactions contemplated hereby or to the extent that the Company shall otherwise consent in writing):
(i) repurchase, redeem or otherwise acquire any of its securities, except for the acquisition of Parent Shares from holders of stock options in full or partial payment of the exercise price payable by such holders upon exercise of such stock options outstanding on the date of this Agreement;
(ii) change any of the accounting principles or practices used by it (except as required by GAAP, in which case written notice shall be provided to the Company prior to any such change), or restate, or become obligated to restate, the financial statements included in the Parent 10-K or Parent 10-Q (except as required by GAAP or a Governmental Entity, in which case written notice shall be provided to the Company prior to any such restatement;
(iii) engage in any transaction (other than transactions contemplated by this Agreement) or take any other action that would (A) require the approval of the shareholders of Parent, (B) require Parent to include the information relating to such transaction in pro forma financial statements in the Registration Statement, or (C) require Parent to amend or restate any pro forma financial statements contained in the Registration Statement in any material manner; or
(iv) obligate itself to do any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Precision Castparts Corp), Merger Agreement (SPS Technologies Inc)
Conduct of Business by the Company. The (a) From the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 8.1, except (i) as prohibited or required by applicable Law or Order, (ii) as set forth in Section 5.1 of the Company agrees thatDisclosure Letter or (iii) as otherwise required or expressly permitted by this Agreement, unless Parent shall otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall use reasonable best efforts to (x) conduct the businesses of the Company and its Subsidiaries in the ordinary course in all material respects and (y) preserve intact, in all material respects, the business organization of the Company and its Subsidiaries and the current relationships of the Company and its Subsidiaries with Persons having material business dealings with the Company or any of its Subsidiaries.
(b) Without limiting the generality of the foregoing, from the date of this Agreement until the date that new directors are appointed to earlier of the Board pursuant to Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 3 of Annex B hereto8.1, except (x) as prohibited or required by applicable Law, (y) as set forth in Section 6.01 5.1 of the Company Disclosure Schedule Letter or (z) as contemplated otherwise required or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreementunless Parent shall otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), the businesses of the Company and its subsidiaries shall be conducted innot, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor permit any of its subsidiaries shall, directly or indirectlySubsidiaries to:
(ai) amend amend, modify, waive any provision of or otherwise change its Certificate certificate of Incorporation incorporation, bylaws or By-laws or equivalent similar organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(cA) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, property or otherwise, with ) in respect to of any of its capital stock;
, except for dividends or distributions by any direct or indirect Subsidiary of the Company to the Company or to (d1) reclassifyany borrower or guarantor under the Amended and Restated Credit Agreement (a “Credit Agreement Obligor”) or (2) any other direct or indirect wholly owned Subsidiary of the Company, (B) adjust, split, combine, split, subdivide or redeemsubdivide, or purchase reclassify any of its capital stock or securities convertible into capital stock or issue or propose or authorize the issuance of any other securities (including options, warrants or any similar security exercisable for, or convertible into, such other security) in respect of, in lieu of, or in substitution for, shares of its capital stock, except with respect to the capital stock or securities of any direct or indirect wholly owned Subsidiary, in connection with transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries or (C) repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock or securities of the Company or any of its Subsidiaries, or any other equity interests or any rights, warrants or options to acquire any such shares, securities or interests, except (1) for quarterly cash dividends in respect of shares of Company Common Stock (and, with respect to Company RSU Awards and Company PSU Awards, dividends or dividend equivalents to the extent required by the terms of such awards as in effect on the date hereof) on a schedule consistent with the Company’s current practices and in an amount per share not in excess of $0.25 per quarter, (2) for acquisitions, or deemed acquisitions, of shares of Company Common Stock or other equity securities of the Company solely in connection with forfeitures of awards, the exercise of Company Options or in connection with the vesting or settlement of Company RSU Awards or Company PSU Awards (including in satisfaction of any amounts required to be deducted or withheld under applicable Law), in each case outstanding as of the date of this Agreement or (3) with respect to the capital stock or securities of any direct or indirect wholly owned Subsidiary, in connection with transactions among the Company and one or more of its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries;
(iii) issue, sell, grant, pledge, dispose of or otherwise encumber, or, with respect to any Subsidiary of the Company, transfer, any shares of its capital stockstock or other securities (including any options, warrants or any similar security exercisable for, or convertible into, such capital stock or similar security), including Company Common Stock and/or Company Preferred Stock, except for (A) the issuance of shares of Company Common Stock pursuant to Contracts in effect prior to the execution and delivery of this Agreement, true, correct and complete copies of which have been made available to Parent prior to the date hereof, (B) the issuance of shares of Company Common Stock pursuant to the ESPP during the current offering period pursuant to participant elections and the terms thereof as of the date of this Agreement, (C) the issuance of shares of Company Common Stock in connection with the exercise of Company Options or the vesting or settlement of Company RSU Awards or Company PSU Awards, in each case outstanding as of the date of this Agreement, (D) issuances by a wholly owned Subsidiary of the Company of capital stock to such Subsidiary’s parent, the Company or another wholly owned Subsidiary of the Company, (E) transfers to a Credit Agreement Obligor or (F) Liens granted by the Company and its Subsidiaries in connection with the Amended and Restated Credit Agreement;
(iiv) (A) merge or consolidate with any other Person, or (B) acquire any assets from or make an investment in (includingwhether through the acquisition of stock, without limitationassets or otherwise) any other Person (excluding Subsidiaries of the Company), by mergerexcept in the case of clause (B) for (1) acquisitions of inventory, consolidationequipment and other assets in the ordinary course of business, (2) any such acquisition or investment where the consideration is not in excess of $5,000,000 individually or $25,000,000 in the aggregate, or acquisition (3) any capital expenditures permitted by Section 5.1(b)(vi);
(v) transfer, sell, lease, license, subject to a Lien (except for Permitted Liens or Liens granted by the Company and its Subsidiaries in connection with the Amended and Restated Credit Agreement), divest, cancel, abandon, allow to lapse or expire or otherwise dispose of any assets (including any Owned Intellectual Property), product lines or businesses of the Company or any of its Subsidiaries (including capital stock or assets other equity interests of any Subsidiary) except (A) pursuant to Contracts which were entered into in the ordinary course of business or which are set forth on Section 3.13(a)(vi) of the Company Disclosure Letter, in each case, which are in effect prior to the execution and delivery of this Agreement and ordinary course renewals thereof, (B) sales, leases or licenses of inventory and dispositions of obsolete or surplus equipment in the ordinary course of business consistent with past practice, (C) transfers, sales, leases, licenses or other dispositions between and/or among the Company or any other of its Subsidiaries, (D) abandonment, cancellation, lapses or expirations of immaterial Owned Intellectual Property in the ordinary course of business, (E) non-exclusive license grants to Owned Intellectual Property granted by the Company or any of its Subsidiaries in connection with the sale or distribution of products in the ordinary course of business, (F) non-exclusive license grants to contract manufacturers that manufacture products on behalf of the Company or any of its Subsidiaries in the ordinary course of business combinationand (G) any corporation, partnership, other business organization such transaction involving assets of the Company or any division thereofof its Subsidiaries with a fair market value not in excess of $1,000,000 individually or $10,000,000 in the aggregate;
(vi) make any capital expenditures except to the extent set forth in, real property consistent with, the Company’s capital expenditure budget for the fiscal year ending December 2, 2017 (plus a 5% variance) that was made available to Parent prior to the date hereof;
(vii) (A) make any loans, advances (other than to directors and officers with respect to any indemnification obligation) or capital contributions to any other Person other than in the ordinary course of business so long as such loans, advances or capital contributions are not material amount of assets; to the Company and its Subsidiaries, taken as a whole or (iiB) except for borrowings under existing credit facilitiescreate, incur incur, guarantee or assume any indebtedness for borrowed money money, or issue or sell any debt securities or assume, guarantee warrants or endorse, other rights to acquire any debt security of the Company or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets Subsidiaries, in excess of $5,000,000 in the aggregate, except for, in the case of each of clause (A) and clause (B), (1) transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries, (2) borrowings under the revolving credit facility of the Company’s Amended and Restated Credit Agreement that are (A) incurred in the ordinary course of business or (B) that are incurred in order to pay any fees and expenses of financial or other advisors of the Company in connection with the transactions contemplated by this Agreement, (3) guarantees by the Company of indebtedness for borrowed money of any of its Subsidiaries or guarantees by any of the Company’s Subsidiaries of indebtedness of the Company or any of its Subsidiaries, which indebtedness is incurred in compliance with this clause (vii) or is outstanding on the date hereof, (4) obligations in respect of letters of credit, performance bonds or similar instruments issued for the account of the Company and/or any of its Subsidiaries in the ordinary course of business, (5) any hedging, swap or similar arrangement entered into in the ordinary course of business and consistent with the Company’s Hedging Policy, (6) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness and in amounts not materially in excess of such existing indebtedness, provided that such amounts are prepayable at any time without penalty or premium, or (C) cancel any debt of any Person owed to the Company or any of its Subsidiaries (other than in connection with transactions between or among the Company and/or any of its Subsidiaries) or waive any claims or rights of value, except for cancellations or waivers that are not reasonably expected to be outside the ordinary course of business and that are not in excess of $2,500,000 individually;
(viii) except as required by Contracts in effect prior to the date of this Agreement, Company Benefit Plans as in effect on the date of this Agreement or applicable Law, (A) increase the compensation or other benefits payable or provided to the Company’s or its Subsidiaries’ officers, directors or employees; (B) enter into any employment, change of control, severance or retention agreement with any employee, director or officer of the Company or any of its Subsidiaries; (C) amend any Company Benefit Plan, except (1) in the ordinary course of business consistent with past practices and as would not result in a material increase in cost to the Company and its Subsidiaries with respect to such Company Benefit Plan or (2) as is required to comply with Section 409A of the Code or other applicable Law; (D) change in any material respect any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to 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 applicable Law; (E) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries; or (F) hire or terminate without cause any executive officer or any employee with a base salary in excess of $150,000.
(ix) other than in respect of claims, liabilities or obligations in connection with any Transaction Litigation, which is subject to Section 6.10, (A) waive, release, settle or compromise any Proceeding for an amount in excess of the amount of the corresponding reserve established on the consolidated balance sheet of the Company as reflected in the most recent applicable Company SEC Document, except (1) for any settlements or compromises involving payments not in excess of $1,000,000 individually or $5,000,000 in the aggregate, net of any insurance and indemnity, contribution and similar obligations for the benefit of the Company or any of its Subsidiaries in respect thereof (it being understood that this clause (1) shall operate in addition to and not in limitation of clause (A) above) and (2) settlements of any worker’s compensation or U.S. Equal Employment Opportunity Commission charges, or (B) agree or enter into any settlement agreement, consent decree, injunction or similar restraint or form of equitable relief in settlement of any claim (including in connection with any Proceeding) or audit, in each case, that would materially restrict the operations of the business of the Company or its Subsidiaries after the Effective Time;
(x) (A) enter into any Contract that would have been a Company Material Contract under Sections 3.13(a)(vii), (viii), (ix) or (x), (B) except in the ordinary course of business; (iii) , enter into any contract or agreement Contract (other than in accordance with the Plan of Liquidation; those subject to clause (A) above) that would have been a Company Material Contract had it been entered into prior to this Agreement, or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(eC) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, materially amend or terminate any Company Material Contract, or cancel, modify or waive any material debts, rights or claims thereunder;
(xi) materially alter or amend any existing accounting methods, principles or material practices, except as may be required by GAAP or applicable Law (including changes thereto);
(A) make or change any material Tax election other than in the ordinary course of filing annual Tax Returns, (B) materially change any method of accounting of the Company or any of its Subsidiaries for Tax purposes, (C) file any material amended Tax Return, (D) settle, concede, compromise or abandon any material Tax claim or assessment, (E) surrender any right to a refund of material Taxes, or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to accounting policies any U.S. federal, state or procedureslocal income Tax Return;
(hxiii) terminateadopt or initiate any plan of complete or partial liquidation, repealdissolution, amend restructuring, closure or otherwise changerecapitalization of the Company or any of its Subsidiaries or any of their respective operations or facilities to the extent outside of the ordinary course of business.
(xiv) fail to maintain in full force and effect material insurance policies or comparable replacement policies covering the Company and its Subsidiaries and their respective properties, or take any action inconsistent assets and businesses in a form and amount consistent with the terms of, the Plan of Liquidationpast practice; or
(ixv) announce an intentionauthorize, enter into agree or obligate itself to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until and continuing through the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth expressly contemplated or permitted by this Agreement or with the prior written consent of Buyer, each of NA and NIG shall (a) carry on its business in Section 6.01 the ordinary course consistent with past practice; (b) make all reasonable efforts to preserve its present business organization and relationships; (c) make all reasonable efforts to keep available the present services of the Disclosure Schedule or as contemplated by any other provision of this Agreementits employees; and (d) make all reasonable efforts to preserve its rights, the Plan of Liquidation franchises, goodwill and the Settlement Agreement, the businesses of the Company relations with its customers and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance others with this Agreement, the Settlement Agreement and the Plan of Liquidationwhom it conducts business. Without limiting the preceding sentencegenerality of the foregoing, except as disclosed expressly permitted by this Agreement or consented to in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretowriting by Buyer, neither the Company of NA nor any of its subsidiaries shall, NIG shall directly or indirectly, and the Shareholders shall not cause NA or NIG, to:
(ai) amend, or agree to amend or otherwise change its Certificate of Incorporation or By-laws (or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumbercomparable instruments), or authorize the issuancemerge with or into or consolidate with, saleor agree to merge with or into or consolidate with, pledgeany other Person, disposition, grant subdivide or encumbrance of, (i) in any way reclassify any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or change or agree to change in any other ownership interest (including, without limitation, any phantom interest), of manner the Company or any rights of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its outstanding capital stock;
(dii) reclassifyexcept as set forth on Schedule 4.1(ii), combine, split, subdivide issue or redeemsell or purchase, or issue any option, warrant, convertible or exchangeable security, right, subscription, call, unsatisfied pre-emptive right or other agreement or right of any kind to purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidationexchange or conversion) (each a "Right"), or acquisition enter into any contracts, agreements or arrangements to issue or sell, any shares of stock or assets or any other business combinationits capital stock;
(iii) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any additional indebtedness for borrowed money or issue any debt securities or assumeguarantee the indebtedness of other Persons, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance business consistent with the Plan of Liquidation; or past practice;
(iv) enter into waive, or amend agree to waive, any contract, agreement, commitment or arrangement with respect right of material value to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)its business;
(fv) increase the compensation payable make, or agree to make, any material change in its directors accounting methods or officers practices for Tax or hire accounting purposes or make, or agree to make, any employeesmaterial change in depreciation or amortization policies or rates adopted by it for Tax or accounting purposes unless otherwise required by law or GAAP;
(gvi) take materially change, or agree to materially change, any actionof its business policies or practices that relate to its business, including, without limitation, fee structure, fee waivers, expense reimbursement, interest rate management, security selection, sales and marketing, personnel, budget or product development policies;
(vii) make any loan or advance to any of the Shareholders or the Company's Affiliates, officers, directors, employees, consultants, agents or other representatives (other than actions required by GAAP or travel advances made in the ordinary course of businessbusiness consistent with past practice), or make any other loan or advance otherwise than in the ordinary course of business consistent with respect to accounting policies or procedurespast practice;
(hviii) terminatesell, repealoffer to sell, amend abandon or otherwise changemake any other disposition of any of its material assets, except in the ordinary course of business consistent with past practice; grant or suffer, or take agree to grant or suffer, any action inconsistent with the terms of, the Plan Encumbrance on any of Liquidation; orits material assets;
(iix) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.except as set forth in Schedule 4.1
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from From the date of this Agreement until the date that new directors are appointed earlier of the Effective Time and the termination of this Agreement pursuant to ARTICLE VIII, and except (i) as expressly permitted or required by this Agreement, (ii) as may be required by applicable Law or pursuant to the Board pursuant to Section 3 terms of Annex B heretoany Company Benefit Plan, except (iii) as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 6.1 of the Company and its subsidiaries shall Disclosure Letter or (iv) with the prior written consent of Parent (which consent will not be conducted inunreasonably withheld, and conditioned or delayed), the Company will not and its subsidiaries shall will cause each Company Subsidiary not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyto:
(a) amend (i) conduct its business and the business of the Company Subsidiaries other than in the ordinary course consistent with past practice in all material respects, (ii) fail to comply in all material respects with all applicable Laws, (iii) fail to use reasonable best efforts to preserve and maintain intact its business organizations and maintain its existing relations with customers, suppliers, lenders, employees, business associates and others having business relationships with it and retain the services of its present officers and key employees or otherwise change its Certificate (iv) take any action that adversely affects the ability of Incorporation any Party to obtain any regulatory approvals for the Transactions; provided, however, that no action or By-laws omission by the Company or equivalent organizational documentsany Company Subsidiary with respect to matters specifically addressed by any provision of Section 6.1(b) through Section 6.1(v) shall be a breach of this Section 6.1(a);
(b) issue, sell, pledge, dispose of, grant, encumbersell or otherwise permit to become outstanding, or authorize the issuancecreation of, saleany additional equity or any additional Rights other than the issuance of Company Common Stock in respect of the vesting, settlement or exercise of Director RSUs, Company RSUs, Company PSUs and Company Stock Options outstanding as of the date hereof;
(c) (i) split, combine or reclassify any of its equity interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its equity interests, or (ii) repurchase, redeem or otherwise acquire, or permit any Company Subsidiary to purchase, redeem or otherwise acquire, any membership, partnership or other equity interests or Rights, except as required by the terms of the Company Stock Plan and the Director Stock Plan and any related award agreements or to satisfy any Tax withholding obligations of the holder thereof or as required by the terms of its securities outstanding on the date of this Agreement (or granted following the date of this Agreement in accordance with this Agreement) by any Company Benefit Plan;
(d) (i) sell, lease, sublease, license, sublicense, abandon, waive, relinquish, transfer, pledge, dispositionabandon, grant assign, swap, mortgage or encumbrance ofotherwise dispose of or subject to any Lien all or any material portion of its assets, businesses or properties (excluding the Owned Real Property and the Leased Real Property) other than (A) any sales, leases, or dispositions in the ordinary course of business consistent with past practice including the factoring of receivables in the ordinary course of business consistent with past practice or (B) any distributions expressly permitted under Section 6.1(g) or (ii) convert from a limited partnership, limited liability company or corporation, as the case may be, to any other business entity;
(e) enter into, exercise any extension or other option under, or modify in any material respect or terminate, any Lease providing for (i) annual rent in excess of $2,000,000 or (ii) aggregate rent in excess of $15,000,000 during the term of such Lease;
(f) sell or otherwise transfer, lease, license, mortgage or otherwise encumber or subject to any shares Lien any of the Owned Real Property, or mortgage or otherwise encumber or subject to any class Lien any of capital stock the Leased Real Property, or acquire or otherwise purchase any real property;
(g) make or declare dividends or distributions to (i) the holders of Company Common Stock or any Company Subsidiary, other ownership interest than regular quarterly dividends in an amount consistent with past practice for the period ending on the Acceptance Time or, if an Offer Termination occurs, the Closing (ii) any other equityholders of the Company or any Company Subsidiary (other than any dividend or distribution from a wholly owned Company Subsidiary to the Company or to any other wholly owned Company Subsidiary);
(h) amend the Company’s or any Company Subsidiary’s Organizational Documents as in effect on the date of its subsidiariesthis Agreement;
(i) (i) (A) enter into, terminate or amend any material Contract other than in the ordinary course of business consistent with past practice or (B) modify, amend, terminate or assign, or waive or assign any rights under, any material Contract, in each case, in any material manner or in any manner that would reasonably be expected to prevent or materially delay the consummation of any of the Transactions or (ii) enter into or extend the scope of any Contract that purports to restrict in any material respect the Company, or any optionsexisting or future Company Subsidiary of the Company, warrantsfrom engaging in any line of business or in any geographic area;
(j) waive, convertible securities release, assign, settle or compromise (i) for an amount in excess of $1,000,000 individually or $5,000,000 in the aggregate any Proceeding, other rights than settlements or compromises to the extent reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company for an amount not in excess of the amount so reflected or reserved (this covenant being in addition to the Company’s agreement set forth in Section 6.17) or (ii) any kind to acquire any shares Proceeding if such settlement or compromise (A) involves a material conduct remedy or material injunctive or similar relief, (B) involves an admission of such capital stock, criminal wrongdoing by the Company or any other ownership interest Company Subsidiary or (including, without limitation, C) has in any phantom interest), material respect a restrictive impact on the business of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesSubsidiary;
(ck) make any material changes in financial or tax accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make GAAP or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockapplicable Law;
(dl) reclassifyfail to use reasonable best efforts to maintain, combinewith financially responsible insurance companies, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockinsurance in such amounts and against such risks and losses as is maintained by it at present;
(m) (i) acquire (includingmake, without limitation, by merger, consolidation, change or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or rescind in any material amount of assets; (ii) except for borrowings under existing credit facilities, incur respect 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, or make any loans or advances, or grant any security interest in any of its assets elections relating to Taxes except in the ordinary course of business; business consistent with past practice, (ii) settle or compromise any Proceeding, audit or controversy relating to material Taxes, (iii) enter into amend any contract or agreement other than Tax Return in accordance with the Plan of Liquidation; or any material respect, (iv) enter into or amend any contract, agreement, commitment or arrangement closing agreement with respect to any matter set forth material Tax, (v) surrender any right to claim a material refund or (vi) without good faith consultation with Parent, change in this Section 6.01(eany material respect any of its methods of reporting income or deductions for federal income Tax purposes;
(i) except as permitted by clauses establish, adopt, enter into, terminate or amend, or take any action to accelerate the vesting or payment of any compensation or benefits under, any material Company Benefit Plan, (ii) and (iii);
(f) grant to any current or former director, officer, employee, contractor or consultant any material increase the compensation payable to its directors in compensation, bonus or officers fringe or hire any employees;
(g) take any actionother benefits, other than actions required by GAAP with respect to employees who are not directors or executive officers in the ordinary course of businessbusiness consistent with past practice or in connection with the Company’s or any Company Subsidiary’s annual merit-based compensation review process or discretionary bonus practices, (iii) grant to any current or former director, officer, employee, contractor or consultant any material increase in change in control, retention, severance or termination pay, (iv) enter into any employment, consulting, change in control, retention or severance agreement with any current or former director, officer, employee, contractor or consultant, (v) terminate the employment of any current officer if such termination would result in the right to receive payment of material change in control, severance or termination benefits, (vi) allow any current or former director, officer, employee, contractor or consultant to begin participating in any Company Benefit Plan that provides change in control, severance or termination benefits, regardless of whether the terms of such Company Benefit Plan would otherwise allow such current or former director, officer, employee, contractor or consultant to begin participating in such Company Benefit Plan; provided, however, that (x) the foregoing clauses (ii), (iii) and (iv) shall not restrict the Company or any Company Subsidiary from granting to any newly hired or promoted director, officer, employee, contractor or consultant, in each case, with annualized base salary of less than $300,000, any increase in compensation, bonus, change in control, retention, severance or termination pay, or fringe or other benefits, or from entering into any employment, consulting, change in control, retention or severance agreement with any such newly hired or promoted Person, in each case, in the ordinary course of business consistent with past practice and (y) nothing in this Agreement shall restrict the Company from granting prior to the Effective Time, in the normal course and consistent with past practices (except with respect to accounting policies the timing of the grant of such awards and as otherwise expressly set forth herein), its annual equity awards for 2018 to employees and non-employee directors, which awards shall be exclusively in the form of Company RSUs or proceduresDirector RSUs; provided, that (A) the aggregate dollar value of such awards is no greater than the aggregate target long term incentive grant values of annual equity awards granted by the Company in 2017, and (B) with respect to each Company RSU awarded to employees in 2018 (each a “Company 0000 XXX”), neither the Merger nor or any other Transaction contemplated by this Agreement, either separately or in the aggregate, will be treated as a vesting event, provided that, such Company 2018 RSUs shall accelerate vesting of any portion of the award then outstanding upon a participant’s termination of employment for death, disability, involuntary termination without cause or voluntary termination with good reason, but not for a voluntary termination without good reason or an involuntary termination for cause (as such terms may be defined pursuant to the Company Stock Plan, or in the case of good reason, pursuant to the Executive Officer Employment Separation Policy, without regard to whether such employee is covered by such policy).
(o) (i) incur, assume, guarantee or otherwise become liable for any Indebtedness (directly, contingently or otherwise), other than borrowings under existing revolving credit facilities in the ordinary course of business consistent with past practice in amounts not to exceed $100,000,000 in aggregate principal amount outstanding at any time in excess of any aggregate principal amount outstanding as of the date of this Agreement and borrowings from the Company by a direct or indirect wholly owned Subsidiary of the Company in the ordinary course of business consistent with past practice, (ii) redeem, repurchase, cancel or otherwise acquire any Indebtedness (directly, contingently or otherwise), (iii) other than with respect to the existing credit facilities, create any material Lien that is not a Permitted Lien on its property or the property of any Company Subsidiary in connection with any pre-existing Indebtedness, new Indebtedness or lease or (iv) make or commit to make (A) any capital expenditure that involves the purchase of real property, (B) any capital expenditure incurred in connection with a customer Contract that is in excess of $20,000,000 in the aggregate or (C) any capital expenditure not contemplated by the preceding clause (A) or (B) that is in excess of $3,000,000 individually, or $10,000,000, in the aggregate;
(hp) terminateenter into any transaction or Contracts with any Affiliate or other Person that would be required to be disclosed by the Company under Item 404 of Regulation S-K of the SEC;
(q) authorize, repealrecommend, amend propose or otherwise changeannounce an intention to adopt a plan of complete or partial dissolution or liquidation;
(r) directly or indirectly acquire (i) by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other manner, any Person or division, business or equity interest of any Person or, (ii) any assets, rights or properties from any other Person, in each case, other than (A) purchases of goods, equipment, products, licenses of Intellectual Property and other assets in the ordinary course of business or pursuant to existing Contracts, or (B) acquisitions not exceeding $1,000,000 individually, or $5,000,000, in the aggregate;
(s) make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any wholly owned Company Subsidiary) other than loans, advances or capital contributions in the form of trade credit granted to customers in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $10,000,000;
(t) take any action inconsistent to increase the vote required for the Company Stockholder Approval;
(u) hire any new officer, employee, consultant or individual service provider (provided that the Company shall be permitted to hire employees, consultants or other individual service providers with an annualized base salary of less than $300,000 in the terms of, ordinary course of business consistent with past practice to fill positions that are open as of the Plan of Liquidationdate hereof or that become open following the date hereof to the extent reasonably necessary as determined by the Company in its sole discretion to maintain the Company’s core business); or
(iv) announce an intentionagree, enter into any agreement in writing or otherwise make a commitmentotherwise, to do take any of the foregoingactions prohibited by clauses (a) through (v) of this Section 6.1.
Appears in 1 contract
Samples: Merger Agreement (CSRA Inc.)
Conduct of Business by the Company. The Company agrees that, from For the period commencing on the date of this Agreement until and ending on the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation expressly required hereby and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed otherwise consented to in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyadvance in writing by Parent:
(a) amend or otherwise change its Certificate the Company will, and will cause each other member of Incorporation or By-laws or equivalent organizational documentsthe Company Group to, conduct the Business only in the ordinary course of business and to the extent consistent therewith will (A) use commercially reasonable efforts to maintain their respective assets and properties and to preserve their current relationships with customers, employees, suppliers and others having business dealings with them and (B) use commercially reasonable efforts to preserve the goodwill and ongoing operations of the Business;
(b) issuethe Company agrees, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or and agrees to cause each other ownership interest member of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;Group:
(i) acquire not to (including, without limitation, by merger, consolidation, or acquisition of stock or assets or A) incur any Indebtedness (other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings than under existing credit facilities, incur any indebtedness for borrowed money agreements in the ordinary course of business) or issue any long-term debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the endorse such obligations of any personother Person, (B) make any loans, capital contributions, investments or advances to, or made any guarantees or other endorsements or incurred any Liabilities (whether directly, contingently or otherwise) for the benefit of, any Persons or (C) increase any reserves for contingent Liabilities (excluding any adjustment to reserves in the ordinary course of business), in each case ((A)-(C));
(ii) not to: (A) acquire, or dispose of, any property or assets; (B) mortgage or encumber any material property or assets, other than with respect to Permitted Liens; or (C) expressly cancel any debts owed to or claims held by any member of the Company Group, in each case ((A)-(C)), other than in the ordinary course of business;
(iii) not to (A) enter into any Contracts that are or would constitute a Company Contract or (B) amend, modify, extend, renew or terminate any Company Contract except as set forth on Schedule 6.1(b)(iii);
(iv) not to enter into any Contracts with, or forgive any loans to, any Affiliates, stockholders, directors, officers or employees of any member of the Company Group, other than the Restricted Stock Repurchase Agreements or the Change of Control Bonus Recipient Letters;
(v) except to the extent required by Law or any existing Contracts, not to enter into, adopt, amend or terminate any Contract relating to the compensation or severance of any employee of any member of the Company Group, other than (i) the Restricted Stock Purchase Agreements or the Change of Control Bonus Recipient Letters or (ii) pursuant to annual compensation reviews in the ordinary course of business;
(vi) not to make any change to its accounting (including Tax accounting) methods, principles or practices, except as may be required by GAAP or applicable Law;
(vii) not to make any amendment to its Organizational Documents;
(viii) not to declare or pay any dividends or distributions or repurchase or redeem any Equity Interests, other than pursuant to the Restricted Stock Repurchase Agreements;
(ix) not to transfer, issue or sell any Equity Interests or options, warrants, calls, subscriptions or other rights to purchase any Equity Interests of any member of the Company Group or split, combine, reclassify or subdivide the Equity Interests of any member of the Company Group, other than pursuant to the Restricted Stock Repurchase Agreements;
(x) not to (A) make or grant any bonus (except as set forth on Schedule 6.1(b)(x)(A)) or any compensation (including incentive compensation) or salary increase, or pay or agree to pay any benefit to, including severance or termination pay (except as may be required by any existing Employee Benefit Plan), to any current (or former) manager, director, officer or employee (except to employees who are not officers in the ordinary course of business), (B) make or grant any increase in the coverage or benefits under any Employee Benefit Plan or arrangement, or amend or terminate any existing Employee Benefit Plan or arrangement or severance Contract or employment Contract, (C) adopt any new Employee Benefit Plan or arrangement or severance Contract or employment Contract (except as required by Law), (D) terminate the employment of any of its officers or key employees (other than for cause) or (E) amend or terminate any existing employment, consulting, termination or severance, salary continuation, change of control, noncompete or other Contract regarding the terms and conditions of employment or payment of compensation or of a consulting or independent contractor relationship with any member of the Company Group or enter into any new such Contract;
(xi) not to (A) sell or transfer any asset, other than in the ordinary course of business, (B) grant, create, incur or suffer to exist any Lien on any asset of any member of the Company Group other than Permitted Liens, (C) write off as uncollectible any guaranteed check, note or account receivable or portion thereof, except in the ordinary course of business or (D) write down the value of any asset or investment on the books or records of the applicable member of the Company Group, except for depreciation and amortization in the ordinary course of business;
(xii) (A) not to engage in any new line of business or activity or make any loans or advancescommitment with respect to the applicable member of the Company Group, or grant any security interest in any of its assets except in the ordinary course of business; , and (iiiB) enter into to maintain its existence and good standing in its jurisdiction of organization and in each jurisdiction in which the leasing of its property or the conduct of its business requires such qualification;
(A) to maintain in full force and effect and in the same amounts policies of insurance comparable in amount and scope of coverage to that now maintained by or on behalf of the applicable member of the Company Group and (B) not to cancel or terminate any contract insurance policy naming it as a beneficiary or agreement other than a loss payable payee without obtaining comparable substitute insurance coverage;
(xiv) to maintain its (A) books and records in accordance with GAAP, consistently applied, and on a basis consistent with the Plan past practice of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) the applicable member of the Company Group and (iii)B) cash management practices in the ordinary course of business;
(fxv) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect not to accounting policies (A) cancel or procedurescompromise any Indebtedness or claim, (B) waive or release any right of material value or (C) institute, settle or agree to settle any Legal Dispute for an amount in excess of $100,000;
(hxvi) terminatenot to (A) acquire any third party or its business (whether by merger, repealacquisition of stock, acquisition of assets or otherwise), (B) solicit, negotiate with, encourage, initiate or engage in discussions or negotiations of any type with, or enter into any confidentiality Contract, letter of intent, purchase Contract, merger Contract or similar Contract with, any Person, or (C) adopt a plan of complete or partial liquidation, dissolution, restructuring or recapitalization;
(xvii) not to (A) enter into, modify or terminate any labor or collective bargaining Contract, (B) agree to provide a labor organization access to employees of any member of the Company Group, (C) agree to any neutrality Contract or other similar Contract with any labor organization, (D) agree to any voluntary recognition of, or card check with, any labor organization or the National Labor Relations Board or (E) effectuate a “plant closing” or “mass layoff” (as those terms are defined under WARN) affecting in whole or in part any site of employment, facility, operating unit or employees of any member of the Company Group;
(xviii) except as required by applicable Law, not to make, amend or otherwise changerevoke any material Tax elections, or take change any action inconsistent with the terms ofannual Tax accounting period, the Plan of Liquidation; or
(i) announce an intentionfile any amended Tax Returns, enter into any agreement closing agreement, settle any Tax claim, audit or otherwise make assessment or surrender any right to claim a commitment, Tax refund; and
(xix) not to agree to do any of the foregoing.
(c) In connection with the continued operation of the Company the Company Group during the period commencing on the date of this Agreement and ending on the Closing Date, and in accordance with applicable Law, the Company will, and will cause each other member of the Company Group to, confer, in good faith on a regular and frequent basis with Parent regarding operational matters and the general status of on-going operations of the Company Group. The Company hereby acknowledges that Parent does not and will not waive any right it may have under this Agreement as a result of such consultations unless expressly in writing waving such right.
Appears in 1 contract
Conduct of Business by the Company. Pending the Closing. The ------------------------------------------------------ Company agrees that, from between the date of this Agreement until and the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Schedule Letter or as contemplated specifically permitted by any other provision of this Agreement, or unless Parent shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to, (x) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.1 and Section 6.5, conduct its operations only in the ordinary and usual course of business consistent with past practice and (z) use its reasonable best efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and, subject to Section 6.5, to preserve the current relationships of the Company and the Company Subsidiaries with their 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. In addition, without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Letter or as specifically permitted by any other provision of this Agreement, the Plan Company shall not and shall not permit any of Liquidation and its Subsidiaries to (unless required by applicable Law or the Settlement Agreement, the businesses regulations or requirements of any stock exchange or regulatory organization applicable to the Company and its subsidiaries shall be conducted inSubsidiaries), and between the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with date of this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallEffective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
(a) amend or otherwise change its Certificate articles or certificate of Incorporation incorporation or By-laws bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant grant, transfer or encumbrance of, (i) of any shares of capital stock of, or other Equity Interests in, the Company or any class Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other ownership interest of the Company or any of its subsidiariesEquity Interests, or any options, warrants, convertible securities warrants or other rights of any kind to acquire any shares of such capital stockstock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary, except that (i) the Company may issue shares of its subsidiaries Company Common Stock pursuant to the ESPP or upon exercise of Company Options outstanding on the date hereof or hereafter granted in accordance with the provisions of subclause (ii), (iii) or (iv) of this clause (b), (ii) the Company may grant Company Options up to an aggregate of 1,100,000 shares of Company Common Stock to newly-hired employees and may grant Company Options up to an aggregate of 4,400,000 shares of Company Common Stock to existing employees and non-employee directors, in each case, in accordance with the terms of the Company Stock Option Plans consistent with past practice and with an exercise price per share of Company Common Stock no less than the fair market value of a share of Company Common Stock as of the date of grant, provided that in no event shall the vesting or exercisability of any such Company Options accelerate solely as a result of the consummation of the transactions contemplated by this Agreement, (iii) the Company may grant Company Options that are Replacement Options pursuant to Section 2.4(b), (iv) the Company may grant Company Options pursuant to existing contractual relationships and as set forth in the Company Disclosure Letter, (v) the Company may grant Equity Interests in accordance with Sections 2.01 and 2.02 of the Governance Agreement, and (vi) the Company Subsidiaries may issue shares of capital stock or other Equity Interests to the Company or any wholly-owned Company Subsidiary;
(i) sell, pledge, dispose of, transfer, lease, license, or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, or encumbrance of, any material property or assets (other than Company Intellectual Property) of the Company or any Company Subsidiary, except (A) sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to existing Contracts, (B) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of its subsidiariesproperty or assets by the Company or a Company Subsidiary in the ordinary course of business but not to exceed an aggregate value for all such sales, pledges, dispositions, transfers, leases, licenses and encumbrances of $100,000,000, (C) sales or dispositions of inventory and other tangible current assets, or (D) as may be required pursuant to Section 6.5(b); (ii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, abandonment, failure to maintain or encumbrance of, any Company Intellectual Property (other than Company Intellectual Property that protects or enhances the value of Enbrel), except (A) sales, pledges, dispositions, transfers, leases, licenses, abandonments, failures to maintain or encumbrances in the ordinary course of business which will not materially impair the conduct of the Company's business and (B) as may be required pursuant to Section 6.5(b); (iii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, abandonment, failure to maintain or encumbrance of, any Company Intellectual Property which protects Enbrel, except (A) agreements entered into for clinical studies involving Enbrel in the ordinary course of business and (B) material transfer agreements relating to Enbrel entered into in the ordinary course of business; or (iv) enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Company Subsidiary and the Company or another wholly-owned Company Subsidiary;
(cd) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, distribution (whether payable in cash, stock, property or otherwise, a combination thereof) with respect to any of its the capital stockstock of the Company (other than dividends or distributions paid by wholly-owned Company Subsidiaries to the Company or to other wholly-owned Company Subsidiaries) or enter into any agreement with respect to the voting of the capital stock of the Company;
(de) (i) reclassify, combine, splitsplit or subdivide any of its capital stock or issue or authorize the issuance of any other securities in respect of, subdivide in lieu of, or in substitution for, shares of its capital stock, or (ii) redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities;
(f) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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 personperson (other than a wholly-owned Company Subsidiary) for borrowed money, except for indebtedness for borrowed money under the Company's existing credit facilities or replacement credit facilities in an aggregate amount not materially larger than the Company's existing credit facilities, (ii) terminate, cancel, or agree to any material and adverse change in, any Company Material Contract other than in the ordinary course of business consistent with past practice, (iii) make or authorize any capital expenditure materially in excess of the Company's budget as disclosed to Parent prior to the date hereof or (iv) make or authorize any material loan to any person (other than a Company Subsidiary) outside the ordinary course of business;
(g) 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 3.9 or 6.10(c) of the Company Disclosure Letter, (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 and methodologies in salaries or wages of officers and/or employees of the Company or any Company Subsidiary), (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 (other than with respect to newly appointed directors and newly hired employees in accordance with past practices of the Company or any Company Subsidiary, provided that any such agreements shall not provide for the payment of any severance or termination pay solely as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby), (iii) 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, consultant or employee, except to the extent required by applicable Law or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or Company Option;
(h) make any loans material change in accounting policies or advancesprocedures, other than in the ordinary course of business consistent with past practice or grant any security interest in any of its assets except as required by GAAP or by a Governmental Entity;
(i) except in the ordinary course of business; (iii) business consistent with past practice, make any material Tax election or settle or compromise any material liability for Taxes, change any annual Tax accounting period, change any method of Tax accounting, file any amended material Tax Return, enter into any contract closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or agreement other than in accordance with consent to any extension or waiver of the Plan statute of Liquidation; limitations period applicable to any material Tax claim or assessment;
(ivj) enter into subject to Section 6.4(h), modify, amend or amend terminate, or waive, release or assign any contract, agreement, commitment material rights or arrangement claims with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) confidentiality or standstill agreement to which the Company is a party and (iii)which relates to a business combination involving the Company;
(fk) increase write up, write down or write off the compensation payable to its directors book value of any assets, individually or officers or hire any employees;
(g) take any actionin the aggregate, for the Company and the Company Subsidiaries taken as a whole, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies business or proceduresotherwise not in excess of $50 million;
(hl) terminatesubject to Section 6.4(h), repeal, amend or otherwise change, or take any action inconsistent to render inapplicable, or to exempt any third party from, (i) the provisions of Chapter 23B.19 of the WBCA 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;
(m) acquire, or agree to acquire, from any Person any assets (not including Intellectual Property), operations, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination with any Person, except (i) in connection with capital expenditures permitted hereunder and except for acquisitions of inventory and other assets (not including Intellectual Property) in the terms ofordinary course of business or (ii) for acquisitions of businesses or assets (not including Intellectual Property) or business combinations having or involving aggregate consideration not in excess of $50,000,000, which, in the Plan case of Liquidationclauses (i) and (ii), individually or in the aggregate, would not be reasonably expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied;
(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 7 not being satisfied;
(o) adopt a shareholder rights agreement, or "poison pill";
(p) acquire, or agree to acquire, from any Person, any Intellectual Property, except in the ordinary course of business consistent with past practice (including in size and nature); or
(iq) announce an intention, authorize or enter into any agreement or otherwise make a commitment, any commitment to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Amgen Inc)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until and continuing through the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth in Section 6.01 expressly contemplated, permitted or required by this Agreement or with the prior written consent of the Disclosure Schedule or as contemplated by any other provision of this AgreementBuyer, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted inshall, and shall cause each of its Subsidiaries to (a) carry on its business in the Company ordinary course consistent with past practice and (b) use commercially reasonable efforts to preserve its subsidiaries shall not take any action except inpresent business organization and relationships (including keeping available the present services of its employees and preserving its rights, franchises, goodwill and Purchaser shall not cause the Company relations with its customers and its subsidiaries to take any action except in, accordance others with this Agreement, the Settlement Agreement and the Plan of Liquidationwhom it conducts business). Without limiting the preceding sentencegenerality of the foregoing, except as disclosed expressly contemplated, permitted or required by this Agreement or consented to in Section 6.01 of the Disclosure Schedulewriting by Buyer, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor shall not, and shall not permit any of its subsidiaries shallSubsidiaries to, directly or indirectly:
(ai) amend or otherwise change agree to amend the Company Operating Agreement, its Certificate articles of Incorporation incorporation or By-laws bylaws (or equivalent comparable organizational documents), or merge with or into or consolidate with, or agree to merge with or into or consolidate with, any other Person, subdivide or in any way reclassify any of its Membership Interests, or change or agree to change in any manner the rights of its Membership Interests or liquidate or dissolve;
(bii) (x) issue, sell, pledge, dispose of, grant, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant acquire any Membership Interest or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of in the Company or any of its subsidiariesSubsidiaries; (y) issue, sell or grant any optionsoption, warrantswarrant, convertible securities or exchangeable security, right, "phantom" partnership (or other rights ownership) interest (or similar "phantom" security), restricted partnership (or other ownership) interest, subscription, call, unsatisfied preemptive right or other agreement or right of any kind to purchase or otherwise acquire (including by exchange or conversion) any shares of such capital stock, its Membership Interests or any other ownership interest interests; or (includingz) enter into any contracts, without limitationagreements or arrangements to issue, any phantom interest)redeem, of the Company acquire or sell any of its subsidiaries or (ii) any assets of the Company Membership Interests or any of its subsidiariesother ownership interests;
(ciii) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay incur any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stocklong-term indebtedness;
(div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue guarantee the indebtedness of other Persons other than in the ordinary course of business consistent with past practice in amounts not to exceed $250,000 in the aggregate (which maximum permissible amount shall be reduced by the dollar amount of indebtedness incurred, if any, pursuant to clause (viii) of this Section 5.1); provided, however, that the Company shall not, and shall not permit its Subsidiaries to, incur any debt securities Voting Debt;
(v) make any change in its accounting methods or assume, guarantee practices for Tax or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, accounting purposes or make any loans change in depreciation or advancesamortization policies or rates adopted by it for Tax or accounting purposes or make any material Tax election or settle or compromise any Tax liability, except in the case of any such liability to the extent reserved for on the Audited Company Balance Sheet;
(vi) make any loan or advance to any of its Affiliates, officers, directors, employees, consultants, agents or other representatives (other than reasonable and customary travel advances made in the ordinary course of business consistent with past practice);
(vii) sell, transfer, lease, offer to sell, abandon or make any other disposition of any of its assets in excess of $250,000 in the aggregate or grant or suffer, or agree to grant or suffer, any security interest in material Encumbrance on any of its material assets;
(viii) incur, assume or guarantee or agree to incur, assume or guarantee, any liability or obligation (whether or not currently due and payable) relating to its business or any of its assets except in the ordinary course of business; business consistent with past practice or in amounts not in excess of $250,000 in the aggregate (which maximum permissible amount shall be reduced by the dollar amount of indebtedness incurred, if any, pursuant to clause (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii5.1);
(fix) increase settle any claim, action or proceeding involving any liability for money damages in excess of $250,000 in the compensation payable to aggregate or any material restrictions upon any of its directors or officers or hire any employeesoperations;
(gx) take create, renew, amend, terminate or cancel, any action, Contract other than actions required by GAAP or in the ordinary course of business consistent with past practice; provided, that the Company and its Subsidiaries may not enter into any contracts or agreements that include any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits the ability of the Company or any of its Subsidiaries to compete (geographically or otherwise) in any line of business;
(xi) enter into, or agree to enter into, any contract, agreement or arrangement or any financial transaction with any of its officers, directors, consultants, agents or representatives, Affiliates or the Funds or the Non-Registered Funds, except, in the case of Funds and Non-Registered Funds pursuant to Investment Company Advisory Agreements and Non-Investment Company Advisory Agreements, respectively, existing and in effect on the date hereof;
(xii) declare or make any dividends or declare or make any other distributions of any kind payable to the Members other than distributions made in accordance with Section 5.23;
(xiii) acquire or agree to acquire in any manner, including by way of merger, consolidation, or purchase of an equity interest or assets, any business of any Person or other business organization or division thereof;
(xiv) enter into, amend, modify or renew any Company Plan, collective bargaining agreement or other contract with any labor organization, or other written employment, consulting, severance or similar agreements or arrangements with any officers or employees of the Company, or grant any salary or wage increase or increase in severance or termination pay or increase any employee benefit or hire any new employee for a senior management position, except (i) reasonable and customary individual increases in compensation to non-officer employees in the ordinary course of business consistent with past practice, (ii) changes that are required by Applicable Law, and (iii) to satisfy commitments existing as of the date hereof and disclosed in the Company Disclosure Schedule;
(xv) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement, Company Plan or employment, indemnification, severance or termination agreement;
(xvi) voluntarily divest itself of management of any Fund, Client, or other assets under management;
(xvii) accelerate the billing or other realizations of Asset-Based Fees or Performance Fees payable by Funds or Clients to the Company or any of its Subsidiaries or delay the payment of liabilities;
(xviii) make or incur any capital expenditure in excess of $250,000 other than those that have been approved in writing or budgeted as of the date hereof or as have been disclosed in writing to Buyer prior to the execution of this Agreement; -45- 51
(xix) cancel any indebtedness or waive any claims or rights in amounts, in each case, in excess of $250,000;
(xx) enter into any lease of real property, except any renewals of existing leases in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with which Buyer shall have the terms of, the Plan of Liquidationright to participate; or
(ixxi) announce an intention, enter into any agreement authorize or otherwise make a commitment, agree (by contract or otherwise) to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Except for matters set forth in Section 5.01 of the Company agrees thatDisclosure Schedule, expressly agreed to in writing by Parent or otherwise expressly permitted by this Agreement, from the date of this Agreement until to the earliest to occur of (i) the date that new of the termination of this Agreement, (ii) the date directors are appointed designated by Parent or Sub have been elected to and shall constitute a majority of the Company Board (the "CONTROL DATE") or (iii) the Effective Time, the Company shall, and shall cause each Company Subsidiary to, conduct the business of the Company and each of the Company Subsidiaries in the usual, regular and ordinary course in substantially the same manner as previously conducted and use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the Board pursuant to Section 3 end that its goodwill and ongoing business shall be unimpaired in all material respects at the Effective Time. In addition, and without limiting the generality of Annex B heretothe foregoing, except as for matters set forth in Section 6.01 5.01 of the Company Disclosure Schedule Schedule, expressly agreed to in writing by Parent or as contemplated otherwise expressly permitted by any other provision this Agreement, from the date of this Agreement to the earliest to occur of the date of the termination of this Agreement, the Plan of Liquidation and Control Date or the Settlement AgreementEffective Time, the businesses Company shall not, and shall not permit any Company Subsidiary to, do any of the Company and its subsidiaries shall be conducted in, and following without the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan prior written consent of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyParent:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (iiA) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeemdividends on, or purchase or otherwise acquire, directly or indirectlymake any other distributions in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(iii) issue, deliver, sell or grant (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their present terms;
(iii) amend its articles of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (including, without limitation, A) by merger, consolidationmerging or consolidating with, or acquisition by purchasing a substantial equity interest in or portion of stock the assets of, or assets or by any other manner, any business combination) or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any division thereofassets that are material, real property individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, except for purchases of inventory in the ordinary course of business consistent with past practice;
(A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation, except to the extent required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents or, with respect to employees (other than directors, officers or key employees) in the ordinary course of business consistent with prior practice, (B) grant to any current or former employee, officer or director of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee, officer or director, (D) establish, adopt, enter into or amend in any material amount respect any collective bargaining agreement or Company Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Company Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets; , liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP;
(iivii) sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any material properties or assets, except for borrowings under existing credit facilities(A) sales of obsolete assets in the ordinary course of business consistent with past practice, and (B) sales of inventory in the ordinary course of business consistent with prior practice;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or assumewarrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any "keep well" or endorse, other agreement to maintain any financial statement condition of another person or otherwise as an accommodation become responsible for, enter into any arrangement having the obligations economic effect of any personof the foregoing, except for short-term borrowings from persons that are not directors, officers or make employees of the Company or any loans or advances, or grant any security interest in any of its assets except Company Subsidiary incurred in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance business consistent with the Plan of Liquidation; past practice, or (ivB) enter into make any loans, advances or amend capital contributions to, or investments in, any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any actionother person, other than actions required by GAAP to or in the Company or any direct or indirect wholly owned subsidiary of the Company or loans, investments and advances in connection with the sale of the products of the Company and the Company Subsidiaries in the ordinary course of businessbusiness consistent with prior practice to persons that are not directors, Shareholders, officers or employees of the Company or any Company Subsidiary, not to exceed $10,000 individually or $100,000 in the aggregate;
(ix) make or agree to make any new capital expenditure or expenditures that are in excess of $50,000 in the aggregate;
(x) make or change any material Tax election or settle or compromise any material Tax liability or refund, except for liabilities not in excess of $10,000 individually or $100,000 in the aggregate;
(xi) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $5,000 individually or $50,000 in the aggregate, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred in the ordinary course of business consistent with past practice, (B) cancel any indebtedness in excess of $5,000 individually or $50,000 in the aggregate or waive any claims or rights of substantial value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party;
(xii) enter into, renew, extend, amend, modify, waive any material provision of, or terminate any lease or similar commitment, in each case providing for payments in excess of $10,000 over the term of such lease or commitment (or until the date on which such lease or commitment may be terminated by the Company without penalty);
(xiii) make any intercompany advances or increase in any management personnel or more than five non-management personnel with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationCompany's India operations; or
(ixiv) announce an intentionauthorize, enter into any agreement or otherwise make a commitmentcommit or agree to take, to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Technisource Inc)
Conduct of Business by the Company. The Company agrees that, from From the date of this Agreement hereof until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth expressly permitted by any other provision of this Agreement, unless Purchaser shall have agreed in Section 6.01 writing (such agreement not to be unreasonably withheld or delayed), the Company shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent with past practice and use its commercially reasonable best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its domestic or foreign national, provincial and local licenses, permits, consents, franchises, approvals and authorizations, (iii) keep available the services of its directors, officers and key employees and (iv) maintain current relationships with its customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the Disclosure Schedule or foregoing, except as contemplated expressly permitted by any other provision of this Agreement, the Plan of Liquidation and Company shall not (unless required by Applicable Law), from the Settlement Agreementdate hereof until the Closing Date, the businesses do any of the Company and its subsidiaries following without the prior written consent of Purchaser (such consent not to be unreasonably withheld or delayed), nor shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor it permit any of its subsidiaries shallSubsidiaries to (unless required by Applicable Law), directly from the date hereof until the Closing Date, do any of the following without the prior written consent of Purchaser (such consent not to be unreasonably withheld or indirectly:delayed):
(a) amend its memorandum and articles of association or otherwise change its Certificate of Incorporation or By-laws or equivalent other similar organizational documents;
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, share or property or any combination thereof) in respect of its capital shares except for dividends by any of its wholly-owned Subsidiaries or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities;
(c) (i) issue, deliver or sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant delivery or encumbrance sale of, (i) any shares of any class Company Securities or Company Subsidiary Securities, other than the issuance of (A) any Shares upon the exercise of any option or other rights to purchase Shares, in each case, outstanding under any employee stock option or compensation plan or arrangement of the Company (a “Company Stock Option”) that are outstanding on the date of this Agreement in accordance with the terms of those options on the date of this Agreement and (B) any Company Subsidiary Securities to the Company or any wholly-owned Subsidiary of the Company or (ii) amend any term of any Company Security or any Company Subsidiary Security (in each case, whether by merger, consolidation or otherwise);
(d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any capital expenditures and such obligations and liabilities not to exceed US$50,000 per month individually or US$200,000 per month in the aggregate in the ordinary course of business consistent with past practice;
(e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other ownership than acquisitions of assets, securities, properties or interests in the ordinary course of business of the Company and its Subsidiaries in a manner that is consistent with past practice that do not constitute the acquisition of a business or of a controlling interest in any Person;
(f) sell, lease or otherwise transfer, or create or incur any Lien on, any of the Company’s or its Subsidiaries’ assets, securities, properties, interests or businesses, other than (i) pursuant to existing contracts or commitments, (ii) sale, transfer, lease or license of properties or assets (including Intellectual Property) in the ordinary course of business consistent with past practice, (iii) any such transaction among the Company and its wholly-owned Subsidiaries, or (iv) sales of assets, securities, properties, interests or businesses with a sale price (including any related assumed indebtedness) that does not exceed US$25,000 per month individually or US$50,000 per month in the aggregate;
(g) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its subsidiariesSubsidiaries;
(h) other than in connection with actions permitted by Section 5.01(d) or Section 5.01(e), make any loans, advances or capital contributions to, or investments in, any optionsother Person (other than from the Company or any wholly-owned Subsidiary of the Company or any VIE, warrants, convertible securities or other rights of any kind as the case may be to acquire any shares of such capital stock, the Company or any other ownership interest wholly-owned Subsidiary of the Company or any other VIE), other than in the ordinary course of business consistent with past practice;
(includingi) create, without limitationincur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof, in each case have a principal amount greater than US$100,000;
(j) enter into, amend, modify in any material adverse respect (as to the Company or any of its Subsidiaries or Parent or any of its Subsidiaries after the Closing Date), or terminate, any phantom interest)Material Contract or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its subsidiaries Subsidiaries;
(k) (i) with respect to any director, officer or (ii) any assets employee of the Company or any of its subsidiaries;
Subsidiaries, (cA) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REITgrant or increase any severance or termination pay (or amend any existing severance pay or termination arrangement) or (B) enter into any employment, declare, set aside, make or pay any dividend deferred compensation or other distributionsimilar agreement (or amend any such existing agreement), payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets each case except in the ordinary course of business; business consistent with past practice, (ii) increase benefits payable under any existing severance or termination pay policies, (iii) enter into establish, adopt or amend (except as required by Applicable Law) any contract collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or agreement other than in accordance with the Plan of Liquidation; benefit plan or arrangement or (iv) enter into increase compensation, bonus or amend any contract, agreement, commitment or arrangement with respect other benefits payable to any matter set forth in this Section 6.01(e) employee of the Company or any of its Subsidiaries, except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or for increases in the ordinary course of business, business consistent with respect to accounting policies or procedurespast practice;
(hl) terminateforgive any material loans to directors, repealofficers, amend employees or otherwise changeany of their respective Affiliates;
(m) change the Company’s methods of accounting, except as required by concurrent changes in U.S. GAAP or in Regulation S-X of the 1934 Act or by a Governmental Authority or by Applicable Law, as agreed to by its independent public accountants;
(n) settle, or take any action inconsistent with the terms ofagree to settle, the Plan of Liquidation; or
(i) announce an intentionany material litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any of its Subsidiaries, (ii) any shareholder litigation or dispute against the Company or any of its officers or directors or (iii) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated hereby;
(o) make or change any Tax election, change any annual tax accounting period, adopt or change any method of tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any agreement with a Taxing Authority, settle any Tax claim, audit or otherwise assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability, other than in the ordinary course of business consistent with past practice;
(p) (i) make a commitmentany change to the Provision Policies, (ii) fail or delay to make any provisions in compliance with the Provision Policies, (iii) fail to conduct any goodwill impairment test, or (iv) make any provisions in violation of U.S. GAAP or not in good faith;
(q) take any action that is intended or would reasonably be expected to result in any of the Offer Conditions not being satisfied;
(r) convene any regular or special meeting (or any adjournment thereof) of the shareholders of the Company; or
(s) agree, resolve or commit to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and comply with all applicable Laws in all material respects, and, to the extent consistent therewith, use its reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it with the intention that its goodwill and ongoing business shall not be materially impaired at the Effective Time. Without limiting the generality of the foregoing, during the period from the date that new directors are appointed of this Agreement to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth provided in Section 6.01 5.01(a) of the Company Disclosure Schedule Letter, (ii) as expressly contemplated by this Agreement, (iii) as may be required in order to divest the Company of the Aggrastat product or (iv) as contemplated necessary in connection with the satisfaction and termination of the Company’s obligations to Pxxx Royalty Fund, the Company shall not, and shall not permit any of its Subsidiaries to, without Parent’s prior written consent, which shall not be sought and obtained unless consistent with applicable antitrust Law and which shall not be unreasonably withheld or delayed:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units (other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date hereof or granted after the date hereof in accordance with clause (B) below, in either case in accordance with their terms on the date hereof (or on the date of grant, if later), and (B) the grant of options to employees hired within one year prior to, or anytime after, the date hereof to acquire shares of Company Common Stock, restricted stock and RSUs to Company employees, directors and consultants in accordance with the Company’s ordinary course of business consistent with past practice, but not to exceed an aggregate of 100,000 shares and RSUs total);
(iii) amend the Company Certificate or the Company By-laws or the comparable charter or organizational documents of any of its Subsidiaries or adopt a stockholders’ rights plan (i.e., “poison pill”) in addition to the current plan (or any renewal or extension of the current plan);
(iv) directly or indirectly acquire (A) by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other provision manner, any division, business or equity interest of any person or (B) any assets forming part of such a division or business that have a purchase price in excess of $500,000 individually or $1,000,000 in the aggregate;
(v) sell, lease, license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or other assets with a fair market value in excess of $500,000 individually or $1,000,000 in the aggregate to a third party (except (A) by incurring Permitted Liens, (B) with respect to properties or other assets no longer used in the operation of the Company’s business and/or (C) in the ordinary course of business);
(vi) with respect to the Company’s 2005 fiscal year, make any capital expenditure or expenditures not budgeted for in the Company’s 2005 fiscal year capital expenditure plan, a correct and complete copy of which shall have been provided to Parent prior to the date of this Agreement, which (1) involves the Plan purchase of Liquidation and any real property or (2) is in excess of $500,000 individually, or $1,000,000 in the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsaggregate;
(bvii) issue, sell, pledge, dispose of, grant, encumber, (A) repurchase or authorize prepay any indebtedness for borrowed money except as required by the issuance, sale, pledge, disposition, grant or encumbrance ofterms of such indebtedness, (iB) incur any shares indebtedness for borrowed money or guarantee any such indebtedness of another person or issue or sell any class of capital stock debt securities or options, warrants, calls or other ownership interest rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (C) make any loans, advances or capital contributions to, or any optionsinvestments in, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest person in excess of $500,000 in the aggregate, other than in the Company or in or to any direct or indirect wholly-owned Subsidiary of the Company;
(includingviii) (A) pay, without limitationdischarge, settle or satisfy any phantom interestclaims (including claims of stockholders), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) (1) in excess of $500,000 individually and $1,000,000 in the aggregate, other than in the ordinary course of business consistent with past practice or (2) involving any material limitation on the conduct of the business of the Company or its Subsidiaries or (B) waive or release any right of the Company or any of its subsidiaries Subsidiaries with a value in excess of $500,000;
(ix) enter into, modify, amend or terminate (A) any Contract which if so entered into, modified, amended or terminated would reasonably be expected to (1) have a Company Material Adverse Effect, (2) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (ii3) prevent or materially delay the consummation of any of the transactions contemplated by this Agreement, (B) any other Contract that involves the Company or any of its Subsidiaries incurring a liability in excess of $500,000 individually or $1,000,000 in the aggregate and that is not terminable by the Company without penalty with one year or less notice (excluding contracts or amendments entered into or made in the ordinary course of business with customers or Providers of the Company or its Subsidiaries), (C) any Contract by which the Company or any of its Subsidiaries grants any license to Company Intellectual Property or (D) any Contract that contains a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(x) enter into any Contract which if in effect as of the date hereof would be required to be disclosed pursuant to Section 3.10(b) hereof (other than Contracts required to be disclosed pursuant to Section 3.10(b)(v)) to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement would reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or other assets of the Company or any of its subsidiariesSubsidiaries under, or give rise to any increased, additional, accelerated or guaranteed right or entitlement of any third party under, or result in any material alteration of, any provision of such Contract;
(cxi) except as required to comply with applicable Law or any Contract disclosed in accordance with the Plan Section 3.12 of Liquidation and solely to the extent necessary for the Company to qualify as a REITDisclosure Letter, declare(A) increase in any manner the compensation or fringe benefits of, set aside, make or pay any dividend bonus to, any current or other distributionformer director, payable in cashofficer, stock, property employee or otherwise, with respect to consultant of the Company or any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.Subsidiaries,
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, neither the Company nor any of its subsidiaries shall, except as specifically contemplated in this Agreement, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsOrganizational Documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of share capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any material assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stocksecurities, property or otherwise, with respect to any of its capital stockCommon Shares;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) other than in the ordinary course of business, enter into any contract or agreement other than in accordance with the Plan of Liquidationas contemplated herein; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii6.1(e);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to change its accounting policies or procedures;procedures;or
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(ig) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The From the Execution Date through the Effective Time, the Company agrees thatshall (i) conduct its business in the ordinary course of business consistent with past practice and in compliance in all material respects with all applicable Laws and (ii) use reasonable best efforts to preserve intact its business organization and goodwill, keep available the services of its present officers, employees and independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with it. In addition, and without limiting the generality of the foregoing, from the date of this Agreement until Execution Date through the date that new directors are appointed to Effective Time, the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 Company shall not do any of the Disclosure Schedule or as contemplated by any other provision following without the prior written consent of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyParent:
(a) (i) amend or otherwise change its Certificate of Incorporation propose to amend the Company Charter or By-laws Company Bylaws, except for the Charter Amendment as described in Section 5.3, (ii) split, combine or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, reclassify their outstanding capital stock or issue or authorize the issuanceissuance of any other security in respect or, sale, pledge, disposition, grant or encumbrance in lieu of, (i) any or in substitution for, shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (iiiii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, (iv) create any Subsidiary or alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company, or (v) enter into any agreement with respect to the voting of its capital stock or other securities held by the Company;
(b) issue, sell, pledge, dispose of, grant, encumber, or agree to issue, sell, pledge, dispose of, grant or encumber any shares of any class of capital stock of the Company, or any options, warrants or rights of any kind to acquire any shares of, capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that the Company may issue Company Capital Stock upon exercise of Company Options and conversion of the Company Convertible Notes outstanding on the date hereof in accordance with their present terms or as contemplated herein;
(i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money, or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any Person, or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock, or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock;
(d) reclassify, combine, split, subdivide (i) acquire or redeemagree to acquire by merging or consolidating with, or purchase by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquireacquire or agree to acquire any assets other than in the ordinary course of business consistent with past practice, directly or indirectly(ii) authorize, make or agree to make any new capital expenditure or expenditures, or enter into any Contract or arrangement that reasonably may result in payments by or Liabilities of the Company in excess of $10,000;
(e) sell, pledge, assign, dispose of, transfer, lease, securitize, or encumber any businesses, properties or assets of the Company, other than sales of inventory and other assets in the ordinary course of business and consistent with past practice;
(f) (i) increase the compensation payable or to become payable (including bonus grants) or increase or accelerate the vesting of the benefits provided to its directors, officers or employees or other service providers, (ii) grant any severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination agreement with, any director, officer or other Employee or other service providers of its capital the Company, (iii) 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 or other service providers, or (iv) pay or make, or agree to pay or make, any accrual or arrangement for payment of any pension, retirement allowance, or any other employee benefit;
(g) announce, implement or effect any reduction in labor force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of Employees of the Company, other than routine Employee terminations;
(h) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it by any applicable federal, state, local or foreign Law, rule, regulation, guideline or ordinance, or under any order, settlement agreement or judgment;
(i) acquire (includingprepare or file any Tax Return inconsistent with past practice or, without limitationon any Tax Return, by mergertake any position, consolidationmake any election, or acquisition adopt any method inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (it being understood and agreed that Parent shall be permitted to review and comment upon any Tax Return for a period of stock at least ten (10) business days prior to its filing);
(j) make or assets change any express or deemed election related to Taxes, change an annual accounting period, adopt or change any other business combination) method of accounting, file an amended Tax Return, surrender any corporationright to claim a refund of Taxes, partnership, other business organization consent to any extension or waiver of the limitation period applicable to any division thereof, real property Tax Proceedings relating to the Company or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except Subsidiaries, or take any other similar action relating to Taxes if such election, change, adoption, amendment, surrender, consent or other action would have the effect of increasing the Tax Liability of the Company or decreasing any Tax attribute of the Company;
(k) pay, discharge or satisfy any claims, liabilities or obligations (whether or not absolute, accrued, asserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business; business consistent with past practice;
(l) amend, modify or consent to the termination of any Company Contract, or amend, waive, modify or consent to the termination of the Company’s rights thereunder, other than an amendment, modification, consent or waiver undertaken in the ordinary course of business consistent with past practice;
(m) enter into, amend, modify, permit to lapse any rights under, or terminate (i) any agreements pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any of its products or technology or which restricts the Company or, upon completion of the Merger or any other transaction contemplated hereby, Parent or any of its Subsidiaries, from engaging or competing in any line of business or in any location, (ii) any agreement with any customer, supplier, sales representative, agent or distributor, other than in the ordinary course of business and consistent with past practice, (iii) any agreement with any other Person pursuant to which the Company is the licensor or licensee of any Intellectual Property, (iv) any agreement or arrangement with Affiliate or executive officers or directors of the Company, (v) any lease for real property or material operating lease, or (vi) any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party and which relates to a business combination or other similar extraordinary transaction;
(n) terminate, cancel, amend or modify any insurance coverage policy maintained by Company or any of its Subsidiaries which is not promptly replaced by a comparable amount of insurance coverage;
(o) commence, waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(p) take any action or omit to 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; or
(q) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contractContract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees thatExcept as otherwise expressly contemplated by this Agreement, during the period from the date of this Agreement until to the earlier of (a) the termination of this Agreement pursuant to Article 10, or (b) the Closing Date, the Seller shall not, and shall cause the Company and its Subsidiaries not to do any or all of the acts listed hereunder, during the period from the date that new directors are appointed of this Agreement to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth in Section 6.01 of the Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, without prior written consent of the Plan Buyer (which can be provided by email).
(i) other than the Pre-Closing Dividend, declare, set aside or pay any dividends on (or make any other distributions in respect of), any of Liquidation its share capital, split, combine, exchange, recapitalize or reclassify any of its share capital or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its share capital;
(ii) issue, deliver, sell, pledge or otherwise encumber or subject to any Encumbrance any shares of its share capital, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such share capital, voting securities or convertible securities;
(iii) amend its certificate of incorporation or by laws or the memorandum and articles of association of Trinity India (or equivalent constitutional and charter documents);
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Settlement Agreementassets or capital stock of, or by any other manner, any business or any Person;
(v) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrance (other than Permitted Encumbrances) or otherwise dispose of any of its properties or assets outside the businesses Ordinary Course of Business of the Company and its subsidiaries shall be conducted inSubsidiaries;
(vi) (A) grant to any current or former director, and officer or other employee any increase in compensation, bonus or other benefits, except as required by Law or under any bonus or compensation or stock option plans or employment agreement in effect as of the date of this Agreement, (B) grant to any such current or former director, officer or employee any increase in severance or termination pay, or (C) enter into, or amend, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, officer or employee, in each case outside the Ordinary Course of Business of the Company and its subsidiaries shall not take Subsidiaries;
(vii) incur or become subject to any action except in, and Purchaser shall not cause liability outside the Ordinary Course of Business of the Company and its subsidiaries Subsidiaries in excess of US$100,000 in the aggregate;
(viii) incur or commit to take incur any action except in, accordance with this Agreement, the Settlement Agreement and the Plan capital expenditures or any obligations or liabilities in excess of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, US$100,000 that will not be fully performed or discharged prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsClosing Date;
(bix) issue(A) enter into, sellamend, pledge, dispose of, grant, encumber, modify or authorize consent to the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares termination of any class of capital stock Seller Material Contract; or other ownership interest of (B) amend, waive, modify or consent to the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights termination of any kind to acquire material right under any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesSeller Material Contract;
(cx) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make commence or pay settle any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stocklitigation;
(dxi) reclassify, combine, split, subdivide or redeem, grant any loans to others or purchase debt securities of others or otherwise acquire, directly or indirectly, amend the terms of any outstanding loan agreement (except as expressly contemplated by this Agreement) in excess of its capital stockan aggregate amount of US$ 20,000;
(ixii) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in revalue any of its assets except (whether tangible or intangible), including without limitation writing down the value of inventory or writing off notes or accounts receivable;
(xiii) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course Ordinary Course of business; Business of the Company and its Subsidiaries, or if outside the Ordinary Course of Business of the Company and its Subsidiaries, pay, discharge or satisfy amounts in excess of $100,000 in the aggregate, if such amounts are for liabilities that are not reflected or reserved against in the Financial Statements;
(iiixiv) make or change any material election in respect of Taxes or India Taxes, adopt or change any accounting method in respect of Taxes or India Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes or India Taxes that was not reserved for on the Financial Statements, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or India Taxes;
(xv) change any of the accounting methods used by it unless required by US GAAP;
(xvi) enter into any contract strategic alliance or agreement other than in accordance with the Plan of Liquidation; joint marketing arrangement or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(fxvii) increase terminate any Key Employees, or encourage any Key Employees to resign outside the compensation payable to Ordinary Course of Business of the Company and its directors or officers or hire any employeesSubsidiaries;
(gxviii) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise changeauthorize, or take any action inconsistent with the terms ofcommit or agree to take, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoingforegoing actions.
1.1. The Buyer shall have a remedy against the Sellers for any breach of the foregoing covenants if a notice was not given on behalf of the Sellers to the Buyer under this Section 8.1.1, unless the Closing occurs.
Appears in 1 contract
Conduct of Business by the Company. The Except (i) as expressly set forth in the Company agrees thatDisclosure Letter; (ii) as expressly permitted or required by this Agreement; (iii) to the extent required by applicable Law; or (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 Effective Time, the Company shall, and shall cause each Company Subsidiary to, conduct the business of Annex B heretothe Company and each Company Subsidiary in the Ordinary Course of Business. In addition, and without limiting the generality of the foregoing, except (i) as expressly set forth in Section 6.01 the Company Disclosure Letter; (ii) as expressly permitted or required by this Agreement or any Company Benefit Plan; (iii) as required by applicable Law; or (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) from the date of this Agreement to the earlier of the Disclosure Schedule Effective Time or as contemplated by any other provision prior termination of this Agreement, the Plan of Liquidation Company shall not, and the Settlement Agreementshall not permit any Company Subsidiary to, the businesses do any of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) declare, set aside or pay any shares of dividends on, or make any class of capital other distributions (whether in cash, stock or other ownership interest property or any combination thereof) in respect of, any of the Equity Securities of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to its parent; (ii) split, combine, subdivide or reclassify any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), the Equity Securities of the Company or any of its subsidiaries Company Subsidiary; or (iiiii) any assets of the Company repurchase, redeem or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeemotherwise acquire, or purchase offer to repurchase, redeem or otherwise acquire, directly or indirectly, any of its capital stockthe Equity Securities of the Company or any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such Equity Securities, except for acquisitions, or deemed acquisitions, of Company Common Stock or other equity securities of the Company in connection with (A) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”), (B) required tax withholding in connection with the exercise, vesting and settlement of Company Stock Awards and other awards pursuant to the Company Stock Plan, and (C) forfeitures of Company Stock Awards;
(b) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Liens imposed by applicable securities Laws and Permitted Liens), or agree, authorize, or commit to the issue, sale, pledge, disposition of, grant, delivery, or encumbrance of (in each case, whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) (i) any Equity Securities of the Company or any Company Subsidiary other than the issuance of Company Common Stock upon the exercise, vesting or settlement of Company Stock Awards or other awards pursuant to the Company Stock Plan, in each case outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect at such time; (ii) any other equity interests or voting securities of the Company or any Company Subsidiary; (iii) any warrants, calls, options or other rights to acquire any Equity Securities of, or other equity interests in, the Company or any Company Subsidiary; (includingiv) any rights issued by the Company or any Company Subsidiary that are linked in any way to the price of any class of Equity Securities of the Company or any Company Subsidiary, without limitationthe value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any Equity Security of the Company or any Company Subsidiary; (vi) any stock-related, cash-based, performance or similar awards or bonuses or any other award that may be settled in Equity Securities of the Company or any of the Company Subsidiaries in which the value of the securities is linked directly or indirectly to the price or value of any Equity Security of the Company or any of its Subsidiaries (other than the issuance of Company Common Stock upon the exercise, vesting or settlement of Company Stock Awards or other awards pursuant to the Company Stock Plan, in each case outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect at such time); or (vii) any Company Voting Debt;
(c) amend the Company’s Charter Documents, except as may be required by Law or the rules and regulations of the SEC or the NYSE;
(d) propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than internal corporate reorganizations of direct or indirect wholly-owned Company Subsidiaries in the Ordinary Course of Business;
(e) make or adopt any change in its accounting methods, principles or practices, except insofar as may be required by a change in GAAP or Law;
(f) directly or indirectly acquire or agree to acquire in any transaction any equity interest in any Person or business or division thereof or any properties or assets (whether by merger, consolidation or acquisition of stock or assets or otherwise), except for (i) acquisitions with an aggregate consideration amount (based upon consideration amounts payable at closing of such acquisitions (including into escrow) and any deferred purchase price consideration amounts payable following closing assuming all such deferred purchase price consideration becomes payable) of less than $50,000,000, (ii) acquisitions pursuant to executed Contracts or executed letters of intent in existence on the date of this Agreement, in each case which have been provided to Parent prior to the date hereof, or (iii) acquisitions with respect to transactions between the Company, on the one hand, and any wholly owned Company Subsidiary, on the other business combinationhand, or between wholly owned Company Subsidiaries;
(g) except in relation to Liens to secure Indebtedness for borrowed money permitted to be incurred under Section 5.01(i), sell, lease (as lessor), mortgage, sell and leaseback or otherwise subject to any corporationLien (other than Permitted Liens), partnershipor otherwise dispose of any properties or assets (including Owned Real Property) or any interests therein, in each case with an aggregate value or purchase price in excess of $10,000,000 in any transaction or series of related transactions or $25,000,000 in the aggregate, other business organization than (i) in the Ordinary Course of Business pursuant to Contracts in effect as of the date of this Agreement which have been provided to Parent prior to the date of this Agreement; or (ii) with respect to transactions between the Company, on the one hand, and any wholly owned Company Subsidiary, on the other hand, or between wholly owned Company Subsidiaries;
(h) except in the Ordinary Course of Business, cancel, fail to renew, or assign any material Real Estate Lease;
(i) (i) incur, assume, issue, modify, guaranty, renew, syndicate or refinance any Indebtedness (other than any Indebtedness described in clause (viii) of the definition of Indebtedness), except for (A) Indebtedness in replacement of Indebtedness existing on the date hereof that would be repayable at the Closing without any premium or penalty; provided that the consummation of the Merger and other transactions contemplated hereby shall not conflict with, or result in any violation of or default under, such replacement Indebtedness and the terms of such replacement Indebtedness shall be substantially identical to, or no less favorable to the Company as, the terms of Indebtedness being replaced at the time of such replacement (including with respect to prepayment provisions); (B) Indebtedness under the Company’s existing revolving credit facility provided that the amount outstanding thereunder at any time does not exceed the amount outstanding thereunder as of the date hereof by greater than $100,000,000 in the aggregate; or (C) Indebtedness between the Company, on the one hand, and any wholly owned Company Subsidiary, on the other hand, or between wholly owned Company Subsidiaries, or (ii) make any loans, capital contributions or advances to any Person (other than the Company and any wholly-owned Company Subsidiary) in an aggregate amount exceeding $1,000,000 in any transaction or any division thereofrelated transactions, real property or $5,000,000 in the aggregate;
(j) except as required by any Contract or Company Benefit Plan in effect on the date hereof or any Law, or as contemplated by this Agreement, (i) enter into any Collective Bargaining Agreement or other labor agreement or voluntarily recognize any trade union or employee association, (ii) enter into any new employee or natural person independent contractor contracts, in any case that provides for annualized compensation payable by the Company or any of its Subsidiaries to any single individual employee or natural person independent contractor in excess of $350,000, in each case other than in the Ordinary Course of Business or in replacement of any individual whose employment or service terminates after the date hereof, (iii) accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any of its current or former directors, officers, employees, consultants or service providers, or otherwise pay any material severance (other than in the Ordinary Course of Business) or any material retention, change-in-control bonus or similar payment to any such individual, (iv) adopt, materially amend or terminate any Company Benefit Plan or adopt or enter into any other material employee benefit plan or arrangement that would be considered a Company Benefit Plan if it were in existence on the date of this Agreement, in each case other than in the Ordinary Course of Business, (v) terminate the employment of any officer other than for cause in the Ordinary Course of Business, or (vi) make any deposits or contributions of cash or other property to or take any action to fund or in any other way secure the payment of compensation or benefits under the Company Benefit Plans or agreement subject to the Company Benefit Plans other than in the Ordinary Course of Business;
(k) assign, transfer, lease, cancel or fail to maintain, renew or extend any Company Permit;
(l) except as permitted by Section 6.06, settle, compromise or agree to settle any pending or threatened action or claim (including any action or claim relating to this Agreement or the transactions contemplated hereby), or release, dismiss or otherwise dispose of any pending or threatened claim, liability, obligation or arbitration, other than settlements or compromises of litigation or releases, dismissals or dispositions of claims, liabilities, obligations or arbitration (A) that involve the payment of monetary damages (excluding monetary damages that are fully covered by the Company’s insurance policies) in an amount not in excess of assets; $2,000,000 individually or $7,500,000 in the aggregate by the Company or any Company Subsidiary, (B) that do not involve any injunctive or other non-monetary relief against or impose any material restrictions on the business or operations of the Company or any of the Company Subsidiaries, (C) that do not relate to the transactions contemplated hereby and (D) that do not involve the issuance of any Equity Securities by any of the Company or its Subsidiaries;
(m) abandon (subject to the reasonable business judgment of Company or such Company Subsidiary, as applicable), encumber, assign, permit to lapse or license any Owned Intellectual Property Rights other than in the Ordinary Course of Business;
(n) make, change or revoke any material election with respect to Taxes, change any material Tax accounting method, file any amended material Tax Return, settle or compromise any material Tax liability, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund;
(o) (i) adopt or implement any shareholder rights plan or similar arrangement, or (ii) enter into any Contract with respect to the voting of its capital stock;
(p) make or authorize capital expenditures except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse(i) as set forth in the Company’s current capital expenditure plan provided to Parent prior to the date hereof, or (ii) otherwise as in an accommodation become responsible foramount not to exceed $5,000,000 in the aggregate;
(q) enter into a material joint venture or partnership or similar third party business enterprise;
(r) other than in the Ordinary Course of Business, (i) enter into, terminate, materially modify, amend or waive any material right under or renew, any Material Contract, (ii) enter into or extend the obligations term or scope of any personcontract or agreement that purports to materially restrict the Company, or make any loans Company Subsidiary, from engaging or advancescompeting in any line of business or in any geographic area, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any Material Contract that would be breached by, or require the consent of any other Person in order to continue such contract or agreement in full force following, consummation of the transactions contemplated by this Agreement, solely in the case of clause (i) above, other than in accordance with to the Plan extent permitted under another subsection of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)5.01;
(fs) increase the compensation payable fail to maintain, in full force without interruption, its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting present material insurance policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationcomparable insurance coverage; or
(it) announce an intention, enter into any agreement a Contract, or otherwise make a commitmentresolve or agree in any legally binding manner, to do take any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as set forth in Section 6.01 4.01(a) of the Company Disclosure Schedule or as contemplated consented to in writing in advance by any other provision of Parent or as expressly permitted pursuant to this Section 4.01(a)(i) through (xvi) or otherwise pursuant to this Agreement, the Plan Company shall, and shall cause each of Liquidation its Subsidiaries to, carry on its business in the ordinary course consistent with past practice (including in respect of research and development activities and programs) and in compliance in all material respects with all applicable laws, rules, regulations and treaties and, to the Settlement Agreementextent consistent therewith, use commercially reasonable efforts to preserve intact its current business organizations, keep available the businesses services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Effective Time. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 4.01(a) of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries Disclosure Schedule or as otherwise expressly permitted pursuant to take any action except in, accordance with this Agreement, the Settlement Agreement Company shall not, and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor shall not permit any of its subsidiaries shallSubsidiaries to, directly or indirectlywithout Parent’s prior written consent:
(ai) amend (x) declare, set aside or otherwise change its Certificate of Incorporation pay any dividends on, or By-laws make any other distributions (whether in cash, stock or equivalent organizational documents;
(bproperty) issue, sell, pledge, dispose in respect of, grantany of its capital stock, encumberother than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its shareholders, (y) split, combine or reclassify any of its capital stock or issue or authorize the issuance, sale, pledge, disposition, grant or encumbrance issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iz) purchase, redeem or otherwise acquire any shares of its capital stock or any class other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other ownership interest securities required under the terms of any plans, arrangements or agreements existing on the date hereof between the Company or any of its Subsidiaries and any director, officer, employee or consultant of the Company or any of its subsidiariesSubsidiaries (complete and accurate copies of which have been heretofore delivered to Parent);
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, including pursuant to Contracts as in effect on the date hereof (other than the issuance of shares of Company Common Stock upon the conversion of Company Preferred Stock or Company Notes, or the exercise of Company Stock Options (including rights under the ESPP, subject to Section 5.04(b)) or Warrants, in each case outstanding on the date hereof in accordance with their terms on the date hereof);
(iii) amend (x) the Company Certificate or the Company By-laws or other comparable charter or organizational documents of any of the Company’s Subsidiaries or (y) the Certificate of Designation with respect to the Company Preferred Stock or the Indenture dated as of August 5, 2002 between the Company and Wxxxx Fargo Bank, National Association, with respect to the Company Notes, in each case except as may be required by law or the rules and regulations of the SEC or The Nasdaq Stock Market, Inc.;
(iv) directly or indirectly acquire (x) by merging or consolidating with, or by purchasing assets of, or by any other manner, any person or division, business or equity interest of any person or (y) any asset or assets that, individually, has a purchase price in excess of $500,000 or, in the aggregate, have a purchase price in excess of $1,000,000, except for new capital expenditures, which shall be subject to the limitations of clause (vii) below, and except for purchases of components, raw materials or supplies in the ordinary course of business consistent with past practice;
(v) (x) sell, lease, license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or other assets or any interests therein (including securitizations), except for sales of inventory and used equipment in the ordinary course of business consistent with past practice; or (y) enter into, modify or amend any lease of property, except for modifications or amendments that are not materially adverse to the Company and its Subsidiaries taken as a whole;
(vi) (x) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants, convertible securities warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), debt securities of the Company or any of its subsidiaries Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (iiy) make any loans, advances or capital contributions to, or investments in, any other person, other than to employees in the ordinary course of business consistent with past practice;
(vii) make any new capital expenditure or expenditures in excess of the amounts set forth in Section 4.01(a)(vii) of the Company Disclosure Schedule;
(viii) except as required by law or any judgment by a court of competent jurisdiction, (v) pay, discharge, settle or satisfy any material claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities disclosed, reflected or reserved against in the most recent financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, (w) cancel any indebtedness (other than upon the conversion of any Company Notes outstanding on the date hereof in accordance with their terms on the date hereof), (x) waive or assign any claims or rights of substantial value or (y) waive any benefits of, or agree to modify in any respect, or, subject to the terms hereof, knowingly fail to enforce, or consent to any matter with respect to which consent is required under, any standstill or similar agreement containing provisions prohibiting a third party from purchasing the capital stock of the Company or otherwise seeking to influence or exercise control over the Company to which the Company or any of its Subsidiaries is a party or (z) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, knowingly fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party;
(ix) enter into any material Contracts relating to the research, clinical trial, development, distribution, sale, supply, license, marketing, co-promotion or manufacturing of products of the Company or any Subsidiary of the Company or products licensed by the Company or any Subsidiary of the Company, or the Intellectual Property Rights of the Company or any Subsidiary of the Company, other than (x) confidentiality agreements entered into in the ordinary course of business consistent with past practice containing customary terms which do not impose any obligations on the Company or its Subsidiaries other than those relating to the treatment of confidential information, (y) consulting agreements entered into in the ordinary course of business consistent with past practice which individually have aggregate values of no more than $50,000 and (z) pursuant to any such Contracts currently in place (that have been disclosed in writing to Parent prior to the date hereof) in accordance with their terms as of the date hereof;
(x) enter into, modify, amend or terminate any material Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would reasonably be expected to (A) materially adversely affect the Company, (B) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (C) prevent or materially delay the consummation of the transactions contemplated by this Agreement;
(xi) enter into any Contract to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement would reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or other assets of the Company or any of its subsidiariesSubsidiaries under, or give rise to any increased, additional, accelerated, or guaranteed right or entitlements of any third party under, or result in any material alteration of, any provision of such Contract;
(cxii) except in accordance with enter into any Contract containing any restriction on the Plan ability of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockSubsidiaries to assign its rights, interests or obligations thereunder, unless such restriction expressly excludes any assignment to Parent or any of its Subsidiaries in connection with or following the consummation of the Merger and the other transactions contemplated by this Agreement;
(dxiii) reclassifysell, combine, split, subdivide transfer or redeem, or purchase license to any person or otherwise acquireextend, directly amend or indirectly, modify any rights to the Intellectual Property Rights of the Company or any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnershipSubsidiaries, other business organization or any division thereof, real property or any material amount of assets; than pursuant to (iix) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except confidentiality agreements entered into in the ordinary course of business; (iii) enter into business consistent with past practice containing customary terms which do not impose any contract obligations on the Company or agreement its Subsidiaries other than in accordance with those relating to the Plan treatment of Liquidation; or confidential information, (ivy) enter consulting agreements entered into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of businessbusiness consistent with past practice which individually have aggregate values of no more than $50,000 and (z) any such Contracts currently in place (that have been disclosed in writing to Parent prior to the date hereof) in accordance with their terms as of the date hereof;
(xiv) except as otherwise contemplated by this Agreement or as required to ensure that any Company Benefit Plan or Company Benefit Agreement is not then out of compliance with applicable law or to comply with any Contract or Company Benefit Plan or Company Benefit Agreement entered into prior to the date hereof (complete and accurate copies of which have been heretofore delivered to Parent), (A) adopt, enter into, terminate or amend (I) any collective bargaining agreement or Company Benefit Plan or (II) any Company Benefit Agreement or other agreement, plan or policy involving the Company or any of its Subsidiaries and one or more of their respective current or former directors, officers, employees or consultants, (B) increase in any manner the compensation, bonus or fringe or other benefits of, or pay any bonus of any kind or amount whatsoever to, any current or former director, officer, employee or consultant, except for any planned salary increases and payment of bonuses, each as described in Section 4.01(a)(xiv) of the Company Disclosure Schedule, (C) pay any benefit or amount not required under any Company Benefit Plan or Company Benefit Agreement or any other benefit plan or arrangement of the Company or any of its Subsidiaries as in effect on the date of this Agreement, other than as contemplated in clause (B), (D) grant or pay any severance or termination pay or increase in any manner the severance or termination pay of any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (E) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including the grant of Company Stock Options (including rights under the ESPP), Company Restricted Stock, “phantom” stock, stock appreciation rights, “phantom” stock rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Benefit Agreements, Company Benefit Plans or agreements or awards made thereunder), other than as contemplated in clause (B), (F) amend or modify any Stock Option or Warrant, (G) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Company Benefit Plan or Company Benefit Agreement, (H) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or (I) materially change any actuarial or other assumption used to calculate funding obligations with respect to accounting policies any Company Pension Plan or procedureschange the manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined;
(hxv) terminateexcept as required by GAAP or by the Company’s independent public accountants, repealrevalue any material assets of the Company or any of its Subsidiaries or make any material change in accounting methods, amend principles or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationpractices; or
(ixvi) announce an intentionauthorize any of, enter into or commit, resolve, propose or agree to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Scios Inc)
Conduct of Business by the Company. The Company agrees that, from From the date of this Agreement until the date that new directors are appointed hereof to the Board pursuant to Section 3 Closing Date, the Company will and will cause each of Annex B its Subsidiaries to, except in each case, as (x) otherwise expressly provided herein, (y) listed on Schedule 5.2 hereto, except as set forth or (z) consented to in Section 6.01 writing by Buyer (such consent not to be unreasonably withheld), conduct its business only in the ordinary and regular course in substantially the same manner heretofore conducted, and use its commercially reasonable efforts, consistent with past practices, to preserve intact its business relationships with third parties, including, without limitation, customers, suppliers, distributors and employees, and to keep available the services of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation its present officers and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted inemployees, and the Company and its subsidiaries shall not take any action except inwill not, and Purchaser shall will not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor permit any of its subsidiaries shall, directly or indirectlySubsidiaries to:
(a) amend take or otherwise omit to be taken any action which would result in a Material Adverse Effect or that would make any representation or warranty of the Company hereunder inaccurate at the Closing Date such that the closing condition set forth in Section 6.2(a) shall not be satisfied as of such date;
(b) adopt or propose any change in its Certificate articles of Incorporation incorporation or Byby-laws or equivalent other organizational documents;
(bc) issuemerge or consolidate with any other Person, acquire a material amount of the assets of any other Person, or purchase or otherwise acquire any equity interest in any Person;
(d) sell, lease, license or otherwise dispose of any material assets or property except (i) pursuant to existing contracts or commitments disclosed on Schedule 3.15 or (ii) in the ordinary course of business consistent with past practice;
(e) sell, transfer, pledge, encumber or otherwise dispose of any equity interests in any Subsidiary;
(f) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, grant, encumberor other equity interests in, or authorize the issuance, sale, pledge, disposition, grant any securities that are convertible into or encumbrance of, (i) exchangeable for any shares of any class of capital stock of, or other ownership interest of the Company or any of its subsidiariesequity interests in, or any outstanding options, warrants, convertible securities warrants or other rights of any kind to acquire any shares of such capital stockstock of, or any other ownership interest (includingequity interests in, without limitation, any phantom interest), of the Company or any of its subsidiaries Subsidiaries;
(g) effect any reorganization or (ii) recapitalization, split, combine or reclassify any assets of the capital stock of, or other equity interests in, the Company or any of its subsidiariesSubsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(ch) except in accordance with offer, sell, issue or grant, or authorize or propose the Plan offering, sale, issuance or grant of, any shares of Liquidation and solely capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to the extent necessary for convert or exchange securities for) any shares of capital stock of, or other equity interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any voting securities of, the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockSubsidiaries;
(i) acquire cancel or materially amend any insurance policy;
(includingj) settle or agree to settle any litigation, without limitationaction or proceeding other than in the ordinary course of business consistent with past practices but not in any case involving amounts in excess of $75,000;
(k) (i) incur or assume debt in amounts in the aggregate in excess of $50,000, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become liable or responsible for(whether directly, contingently or otherwise) for the obligations of any personother Person (except the Company, its Subsidiaries or Seller), except such obligations which do not have an aggregate value of greater than $50,000, (iii) make any loans, advances or capital contributions to any other Person (except the Company, its Subsidiaries or Seller) in amounts in the aggregate in excess of $50,000, or make (iv) mortgage or pledge any loans material assets or advancescreate any Lien upon any material assets except for Permitted Liens;
(l) effect any change in any accounting methods, principles or practices in effect as of the Most Recent Balance Sheet Date, except as may be required by GAAP or applicable law;
(m) enter into or assume any contract, agreement or other arrangement which, if in existence on the date hereof, would be required to be disclosed in Schedule 3.15, or grant modify, amend or terminate any security interest contract, agreement or other arrangement required to be disclosed in any of its assets Schedule 3.15, except in the ordinary course of business; (iii) enter into business and consistent with past practice, or waive, release or assign any contract material rights or agreement other than in accordance with claims under, or violate any of the Plan of Liquidation; or (iv) enter into or amend material terms of, any contract, agreementagreement or other arrangement required to be disclosed in Schedule 3.15;
(n) abandon, commitment fail to maintain or arrangement cancel any material Company Intellectual Property Rights owned by the Company, except for such Company Intellectual Property Rights that have reached the end of their term and cannot be renewed or extended;
(o) make or change any material election with respect to Taxes or compromise, settle or otherwise discharge any matter set forth in this Section 6.01(eaudit or claim with respect to material Taxes;
(p) except as permitted by clauses (i) adopt, amend, renew or terminate any employee benefit plan (including any Employee Benefit Plan) or any agreement, arrangement, plan or policy between the Company or any of its Subsidiaries and one or more of its current or former directors, officers or employees, (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or except for normal increases in the ordinary course of businessbusiness consistent with past practice or except as required by applicable law, with respect to accounting policies increase in any manner the compensation or procedures;
(h) terminatefringe benefits of any director, repeal, amend officer or otherwise changeemployee, or take pay any action inconsistent with benefit not contemplated by any Employee Benefit Plan or agreement as in effect as of the terms ofdate hereof, or (iii) make any equity or equity-based grants or allocations under any Employee Benefit Plan (including the Plan granting of Liquidationstock options, stock appreciation rights, restricted stock, restricted stock units or performance units or shares); or
(iq) announce an intention, enter into any agreement agree or otherwise make a commitment, commit to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Except for matters set forth in the Company agrees thatDisclosure Letter or otherwise contemplated by this Agreement, from the date of this Agreement until the date that new directors are appointed to the Board pursuant Effective Time, the Company shall, and shall cause each Company Subsidiary to, conduct its business in the ordinary course in substantially the same manner as previously conducted and, to Section 3 the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization and keep available the services of Annex B heretoits current officers and employees and its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. In addition, and without limiting the generality of the foregoing, except as for matters set forth in Section 6.01 of the Company Disclosure Schedule Letter or as otherwise contemplated by any other provision of this Agreement, from the Plan date of Liquidation and this Agreement to the Settlement AgreementEffective Time, the businesses Company shall not, and shall not permit any Company Subsidiary to, do any of the Company and its subsidiaries shall be conducted infollowing without the prior written consent of Parent, which consent, in the cases of Sections 5.01(e), (g), (i), (j), (1), (m), (n), and the Company and its subsidiaries (q) below, shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly be unreasonably withheld or indirectlydelayed:
(a) amend (i) split, combine, subdivide or reclassify, directly or indirectly, any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (ii) purchase, redeem or otherwise change its Certificate acquire, directly or indirectly, any shares of Incorporation capital stock of the Company or By-laws any Company Subsidiary or equivalent organizational documentsany other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, sell, pledge, dispose of, grant, encumber, encumber or grant or authorize the issuance, delivery, sale, pledge, disposition, encumbrance or grant or encumbrance of, of (i) any shares of its capital stock, (ii) any class of capital stock Voting Company Debt or other ownership interest voting securities, (iii) any securities convertible into or exchangeable for, or any options, warrants or other rights to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities of the Company or any of its subsidiariesCompany Subsidiary or (iv) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units in the Company or any optionsCompany Subsidiary;
(c) amend its articles of incorporation, warrants, convertible securities bylaws or other rights of any kind comparable charter or organizational documents;
(d) acquire or agree to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, by way of merger or consolidation with, purchasing a substantial equity interest in or substantial portion of the assets of, or any phantom interest)business combination with, or by any other manner) any business or any corporation, partnership, joint venture, association or other business organization or division thereof;
(e) (i) grant to any employee, officer or director of the Company or any of its subsidiaries or Company Subsidiary any increase in compensation, (ii) grant to any employee, officer or director of the Company or any Company Subsidiary any increase in severance or termination pay, (iii) enter into any employment, severance or termination agreement with any such employee, officer or director, (iv) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan or (v) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Company Benefit Plan;
(f) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP;
(g) sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any material properties or assets of the Company or any Company Subsidiary, other than (i) sales of its subsidiariesobsolete assets in the ordinary course of business consistent with past practice, (ii) sales of Inventory in the ordinary course of business and as otherwise permitted pursuant to Section 2.05 and (iii) Liens that are incurred in the ordinary course of business consistent with past practice;
(ch) except in accordance with the Plan (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of Liquidation and solely another person, issue or sell any debt securities or warrants or other rights to the extent necessary for acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to qualify as a REITmaintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other person, other than to or in the Company or any direct or indirect wholly owned subsidiary of the Company;
(i) enter into any contract or agreement other than in the ordinary course of business consistent with past practice;
(j) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except as set forth in Section 5.01(j) of the Company Disclosure Letter;
(dk) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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 personauthorize, or make any loans commitment with respect to, any single capital expenditure which is in excess of $2 million;
(l) pay, discharge or advancessatisfy any claim, liability or grant any security interest in any of its assets except obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the ordinary course of business; (iii) enter into any contract business and consistent with past practice, of liabilities reflected or agreement other than reserved against in accordance with the Plan of Liquidation; Balance Sheet or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or subsequently incurred in the ordinary course of business, business and consistent with respect to accounting policies or procedurespast practice;
(hm) terminateamend, repeal, amend modify or otherwise changeconsent to the termination of any Material Contract, or take amend, waive, modify or consent to the termination of the Company’s or any action inconsistent with Company Subsidiary’s rights thereunder;
(n) commence or settle any material action;
(o) permit any item of Intellectual Property that is owned by the terms ofCompany or any Company Subsidiary that is necessary for the operation of the business of the Company and the Company Subsidiaries, the Plan of Liquidationtaken as a whole, as currently conducted to lapse or to be abandoned, dedicated or disclaimed;
(p) make any material Tax election or settle or compromise any material Tax liability or refund; or
(iq) announce an intentionauthorize any of, enter into or commit or agree to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and comply with all applicable Laws in all material respects, and, to the extent consistent therewith, use its reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it with the intention that its goodwill and ongoing business shall not be materially impaired at the Effective Time. Without limiting the generality of the foregoing, during the period from the date that new directors are appointed of this Agreement to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth provided in Section 6.01 5.01(a) of the Company Disclosure Schedule Letter, (ii) as expressly contemplated by this Agreement, (iii) as may be required in order to divest the Company of the Aggrastat product or (iv) as contemplated necessary in connection with the satisfaction and termination of the Company’s obligations to Xxxx Royalty Fund, the Company shall not, and shall not permit any of its Subsidiaries to, without Parent’s prior written consent, which shall not be sought and obtained unless consistent with applicable antitrust Law and which shall not be unreasonably withheld or delayed:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units (other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date hereof or granted after the date hereof in accordance with clause (B) below, in either case in accordance with their terms on the date hereof (or on the date of grant, if later), and (B) the grant of options to employees hired within one year prior to, or anytime after, the date hereof to acquire shares of Company Common Stock, restricted stock and RSUs to Company employees, directors and consultants in accordance with the Company’s ordinary course of business consistent with past practice, but not to exceed an aggregate of 100,000 shares and RSUs total);
(iii) amend the Company Certificate or the Company By-laws or the comparable charter or organizational documents of any of its Subsidiaries or adopt a stockholders’ rights plan (i.e., “poison pill”) in addition to the current plan (or any renewal or extension of the current plan);
(iv) directly or indirectly acquire (A) by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other provision manner, any division, business or equity interest of any person or (B) any assets forming part of such a division or business that have a purchase price in excess of $500,000 individually or $1,000,000 in the aggregate;
(v) sell, lease, license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or other assets with a fair market value in excess of $500,000 individually or $1,000,000 in the aggregate to a third party (except (A) by incurring Permitted Liens, (B) with respect to properties or other assets no longer used in the operation of the Company’s business and/or (C) in the ordinary course of business);
(vi) with respect to the Company’s 2005 fiscal year, make any capital expenditure or expenditures not budgeted for in the Company’s 2005 fiscal year capital expenditure plan, a correct and complete copy of which shall have been provided to Parent prior to the date of this Agreement, which (1) involves the Plan purchase of Liquidation and any real property or (2) is in excess of $500,000 individually, or $1,000,000 in the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsaggregate;
(bvii) issue, sell, pledge, dispose of, grant, encumber, (A) repurchase or authorize prepay any indebtedness for borrowed money except as required by the issuance, sale, pledge, disposition, grant or encumbrance ofterms of such indebtedness, (iB) incur any shares indebtedness for borrowed money or guarantee any such indebtedness of another person or issue or sell any class of capital stock debt securities or options, warrants, calls or other ownership interest rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (C) make any loans, advances or capital contributions to, or any optionsinvestments in, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest person in excess of $500,000 in the aggregate, other than in the Company or in or to any direct or indirect wholly-owned Subsidiary of the Company;
(includingviii) (A) pay, without limitationdischarge, settle or satisfy any phantom interestclaims (including claims of stockholders), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) (1) in excess of $500,000 individually and $1,000,000 in the aggregate, other than in the ordinary course of business consistent with past practice or (2) involving any material limitation on the conduct of the business of the Company or its Subsidiaries or (B) waive or release any right of the Company or any of its subsidiaries Subsidiaries with a value in excess of $500,000;
(ix) enter into, modify, amend or terminate (A) any Contract which if so entered into, modified, amended or terminated would reasonably be expected to (1) have a Company Material Adverse Effect, (2) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (ii3) prevent or materially delay the consummation of any of the transactions contemplated by this Agreement, (B) any other Contract that involves the Company or any of its Subsidiaries incurring a liability in excess of $500,000 individually or $1,000,000 in the aggregate and that is not terminable by the Company without penalty with one year or less notice (excluding contracts or amendments entered into or made in the ordinary course of business with customers or Providers of the Company or its Subsidiaries), (C) any Contract by which the Company or any of its Subsidiaries grants any license to Company Intellectual Property or (D) any Contract that contains a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(x) enter into any Contract which if in effect as of the date hereof would be required to be disclosed pursuant to Section 3.10(b) hereof (other than Contracts required to be disclosed pursuant to Section 3.10(b)(v)) to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement would reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or other assets of the Company or any of its subsidiariesSubsidiaries under, or give rise to any increased, additional, accelerated or guaranteed right or entitlement of any third party under, or result in any material alteration of, any provision of such Contract;
(cxi) except as required to comply with applicable Law or any Contract disclosed in accordance with the Plan Section 3.12 of Liquidation and solely to the extent necessary for the Company to qualify as a REITDisclosure Letter, declare(A) increase in any manner the compensation or fringe benefits of, set aside, make or pay any dividend bonus to, any current or other distributionformer director, payable in cashofficer, stock, property employee or otherwise, with respect to consultant of the Company or any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.Subsidiaries,
Appears in 1 contract
Samples: Merger Agreement (Mgi Pharma Inc)
Conduct of Business by the Company. The Company agrees that, During the period ----------------------------------- from the date of this Agreement until and continuing through the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth in Section 6.01 expressly contemplated, permitted or required by this Agreement or with the prior written consent of the Disclosure Schedule or as contemplated by any other provision of this AgreementBuyer, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted inshall, and shall cause each of its Subsidiaries to (a) carry on its business in the Company ordinary course consistent with past practice and (b) use commercially reasonable efforts to preserve its subsidiaries shall not take any action except inpresent business organization and relationships (including keeping available the present services of its employees and preserving its rights, franchises, goodwill and Purchaser shall not cause the Company relations with its customers and its subsidiaries to take any action except in, accordance others with this Agreement, the Settlement Agreement and the Plan of Liquidationwhom it conducts business). Without limiting the preceding sentencegenerality of the foregoing, except as disclosed expressly contemplated, permitted or required by this Agreement or consented to in Section 6.01 of the Disclosure Schedulewriting by Buyer, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor shall not, and shall not permit any of its subsidiaries shallSubsidiaries to, directly or indirectly:
(ai) amend or otherwise change agree to amend the Company Operating Agreement, its Certificate articles of Incorporation incorporation or By-laws bylaws (or equivalent comparable organizational documents), or merge with or into or consolidate with, or agree to merge with or into or consolidate with, any other Person, subdivide or in any way reclassify any of its Membership Interests, or change or agree to change in any manner the rights of its Membership Interests or liquidate or dissolve;
(bii) (x) issue, sell, pledge, dispose of, grant, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant acquire any Membership Interest or encumbrance of, (i) any shares of any class of capital stock or other ownership interest of in the Company or any of its subsidiariesSubsidiaries; (y) issue, sell or grant any optionsoption, warrantswarrant, convertible securities or exchangeable security, right, "phantom" partnership (or other rights ownership) interest (or similar "phantom" security), restricted partnership (or other ownership) interest, subscription, call, unsatisfied preemptive right or other agreement or right of any kind to purchase or otherwise acquire (including by exchange or conversion) any shares of such capital stock, its Membership Interests or any other ownership interest interests; or (includingz) enter into any contracts, without limitationagreements or arrangements to issue, any phantom interest)redeem, of the Company acquire or sell any of its subsidiaries or (ii) any assets of the Company Membership Interests or any of its subsidiariesother ownership interests;
(ciii) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay incur any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stocklong-term indebtedness;
(div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue guarantee the indebtedness of other Persons other than in the ordinary course of business consistent with past practice in amounts not to exceed $250,000 in the aggregate (which maximum permissible amount shall be reduced by the dollar amount of indebtedness incurred, if any, pursuant to clause (viii) of this Section 5.1); provided, however, that the Company shall not, and shall not permit its Subsidiaries to, incur any debt securities Voting Debt;
(v) make any change in its accounting methods or assume, guarantee practices for Tax or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, accounting purposes or make any loans change in depreciation or advancesamortization policies or rates adopted by it for Tax or accounting purposes or make any material Tax election or settle or compromise any Tax liability, except in the case of any such liability to the extent reserved for on the Audited Company Balance Sheet;
(vi) make any loan or advance to any of its Affiliates, officers, directors, employees, consultants, agents or other representatives (other than reasonable and customary travel advances made in the ordinary course of business consistent with past practice);
(vii) sell, transfer, lease, offer to sell, abandon or make any other disposition of any of its assets in excess of $250,000 in the aggregate or grant or suffer, or agree to grant or suffer, any security interest in material Encumbrance on any of its material assets;
(viii) incur, assume or guarantee or agree to incur, assume or guarantee, any liability or obligation (whether or not currently due and payable) relating to its business or any of its assets except in the ordinary course of business; business consistent with past practice or in amounts not in excess of $250,000 in the aggregate (which maximum permissible amount shall be reduced by the dollar amount of indebtedness incurred, if any, pursuant to clause (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii5.1);
(fix) increase settle any claim, action or proceeding involving any liability for money damages in excess of $250,000 in the compensation payable to aggregate or any material restrictions upon any of its directors or officers or hire any employeesoperations;
(gx) take create, renew, amend, terminate or cancel, any action, Contract other than actions required by GAAP or in the ordinary course of business consistent with past practice; provided, that the Company and its Subsidiaries may not enter into any contracts or agreements that include any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits the ability of the Company or any of its Subsidiaries to compete (geographically or otherwise) in any line of business;
(xi) enter into, or agree to enter into, any contract, agreement or arrangement or any financial transaction with any of its officers, directors, consultants, agents or representatives, Affiliates or the Funds or the Non-Registered Funds, except, in the case of Funds and Non-Registered Funds pursuant to Investment Company Advisory Agreements and Non-Investment Company Advisory Agreements, respectively, existing and in effect on the date hereof;
(xii) declare or make any dividends or declare or make any other distributions of any kind payable to the Members other than distributions made in accordance with Section 5.23;
(xiii) acquire or agree to acquire in any manner, including by way of merger, consolidation, or purchase of an equity interest or assets, any business of any Person or other business organization or division thereof;
(xiv) enter into, amend, modify or renew any Company Plan, collective bargaining agreement or other contract with any labor organization, or other written employment, consulting, severance or similar agreements or arrangements with any officers or employees of the Company, or grant any salary or wage increase or increase in severance or termination pay or increase any employee benefit or hire any new employee for a senior management position, except (i) reasonable and customary individual increases in compensation to non-officer employees in the ordinary course of business consistent with past practice, (ii) changes that are required by Applicable Law, and (iii) to satisfy commitments existing as of the date hereof and disclosed in the Company Disclosure Schedule;
(xv) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement, Company Plan or employment, indemnification, severance or termination agreement;
(xvi) voluntarily divest itself of management of any Fund, Client, or other assets under management;
(xvii) accelerate the billing or other realizations of Asset-Based Fees or Performance Fees payable by Funds or Clients to the Company or any of its Subsidiaries or delay the payment of liabilities;
(xviii) make or incur any capital expenditure in excess of $250,000 other than those that have been approved in writing or budgeted as of the date hereof or as have been disclosed in writing to Buyer prior to the execution of this Agreement;
(xix) cancel any indebtedness or waive any claims or rights in amounts, in each case, in excess of $250,000;
(xx) enter into any lease of real property, except any renewals of existing leases in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with which Buyer shall have the terms of, the Plan of Liquidationright to participate; or
(ixxi) announce an intention, enter into any agreement authorize or otherwise make a commitment, agree (by contract or otherwise) to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from Prior to the date Closing or the earlier termination of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoAgreement, and except as otherwise contemplated by this Agreement, set forth in Section 6.01 6.2 of the Disclosure Schedule or as contemplated consented to or approved by any other provision of this AgreementParent in writing, the Plan of Liquidation Company covenants and agrees that it shall carry on the Settlement AgreementBusiness in the ordinary course and use commercially reasonable efforts to preserve the properties, the businesses business, operations (including officers and employees), goodwill and relationships with suppliers and customers of the Company Business and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take undertake any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing:
(a) amend or otherwise change its Certificate the organizational documents of Incorporation or By-laws or equivalent organizational documentsthe Company;
(b) issueadopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a merger, sellconsolidation, pledgerestructuring, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock recapitalization or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesreorganization;
(c) except in accordance with the Plan sell, transfer, lease or otherwise dispose of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassifymaterial assets, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into , or create any contract or agreement other than in accordance with the Plan Encumbrance on any of Liquidation; or (iv) enter into or amend any contractits material assets, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)for Permitted Encumbrances;
(fd) increase permit any change in the compensation payable to its directors assets, liabilities, sales, income or officers Business of the Company or hire any employees;
(g) take any actionin the Company’s relationships with suppliers, customers or lessors, other than actions required by GAAP or changes arising in the ordinary course of business, which assets have a value in excess of $100,000;
(i) permit any change in the policies or practices of the Company with regard to pricing, the extension of discounts or credits to customers or collection of receivables from customers, (ii) fail to pay any creditor any material amount owed to such creditor when due or (iii) grant any extensions of credit other than in the ordinary course of business;
(f) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or business or division thereof or (ii) any material assets, except, with respect to accounting policies this clause (ii), (A) purchases of inventory or proceduressupplies in the ordinary course of business or (B) other purchases of assets in the ordinary course of business and not in excess of $100,000 for any purchase or series of related purchases;
(g) create, incur, assume, modify, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness other than Indebtedness not in excess of $25,000 and incurred in the ordinary course of business;
(h) place any Encumbrance on any of the properties of the Company, other than Permitted Encumbrances;
(i) issue, sell or create any Encumbrance on (i) the Existing Company Equity, any membership interests or other equity securities of the Company or (ii) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any membership interests or other equity securities;
(j) split, combine, recapitalize or reclassify any Existing Company Equity or pay or set aside any distribution or other dividend (whether in cash, equity or property, or any combination thereof) in respect of the capital stock of the Company;
(k) make any loans, advances or capital contributions to, or investments in, any other Person, except in the ordinary course of business;
(l) except (A) as required pursuant to Contracts existing and in force prior to the date of this Agreement described in Section 4.12 or Section 4.23 of the Disclosure Schedule or (B) as otherwise required by applicable Law, (i) grant or agree to grant any material increase in the wages, salaries, bonus, benefits or other compensation payable or to become payable to, or any advance or loan to, any of the Company’s current or former officers, directors, employees or independent contractors (other than increases in salary in the ordinary course of business consistent with past practice to employees other than executive officers, provided that such increases are not material in the aggregate), (ii) hire any new employee or enter into, terminate, repealadopt or amend any employment agreement, amend restrictive covenant agreement, Benefit Plan or collective bargaining agreement, (iii) make any award or grant under any Benefit Plan or (iv) fail to make contributions to Benefit Plans in accordance with past practice, the terms of such Benefit Plans and applicable Law;
(m) waive, release, assign, settle or compromise any Legal Proceeding;
(i) make any capital expenditures that are in the aggregate in excess of $100,000 or are or were not contemplated in the Company’s annual budget, business plan or other similar projections or forecasts or (ii) fail to make any capital expenditures or conduct research and development contemplated in the Company’s annual budget, business plan or other similar projections or forecasts;
(o) enter into or materially modify any Contracts, arrangements or understandings between the Company, on the one hand, and any director, officer or stockholder (or Affiliate thereof) of the Company or any Person that controls the Company, on the other hand;
(p) enter into any material transaction, Contract or commitment outside the ordinary course of business, waive or permit the loss of any Permit or right of substantial value or cancel any material debt or claim;
(q) amend, modify, assign or terminate any of the Key Employee Agreements or the Support Agreements;
(r) sell, assign, transfer, license or convey any rights under, or abandon, permit to be cancelled or otherwise changededicate to the public any material Intellectual Property owned by the Company;
(s) change or modify its credit, collection or payment policies or procedures as in effect on the date hereof in a manner materially adverse to it or the Business;
(t) fail to maintain its books of account and records consistent with its past practices and except as required by Law or applicable accounting principles (including GAAP), make any material change in its accounting principles, methods, policies and procedures;
(i) change any Tax or accounting election, method, practice or policy, (ii) fail to pay any Tax as such Tax becomes due and payable, (iii) file any amended Tax Return, or take prepare or file any action Tax Return in a manner inconsistent with past practice or applicable Law, (iv) enter into any closing agreement, settlement or compromise of any claim or assessment, in each case in respect of Taxes or (v) consent to any extension or waiver of any limitation period with respect to any claim or assessment for Taxes; provided, that for purposes of this clause (u), all references to the terms of, the Plan of LiquidationCompany shall be deemed to include CSI Health; or
(iv) announce an intention, enter into any agreement Contract with respect to, or otherwise make a commitmentagree or commit to, to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (JetPay Corp)
Conduct of Business by the Company. The Company During the period from the Effective Date and continuing until the Closing, the company covenants and agrees that, from unless Investor shall otherwise agree in writing and unless otherwise expressly permitted hereunder, the date company shall conduct its Business, in the ordinary course of this Agreement until business, and the date that new directors are appointed Company shall used commercially reasonable efforts to preserve substantially intact the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 business organization of the Disclosure Schedule or as contemplated by any other provision Company, to keep available the services of this Agreementthe present officers, the Plan of Liquidation employees and the Settlement Agreement, the businesses consultants of the Company and its subsidiaries shall be conducted into preserve the present relationships of the company with customers, suppliers and other Persons with which the company has significant business relations. By way of amplification and not limitation, during the period from the Effective Date and continuing until the Closing, the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallnot, directly or indirectly, do or propose to do any of the following without the prior written consent of Investor, unless otherwise expressly permitted hereunder:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, of or encumber, or authorize the issuance, sale, pledge, disposition, grant disposition or encumbrance Encumbrance of, (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesclass, or any options, warrants, convertible securities or exchangeable securities, or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesCompany;
(ci) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount combination thereof) in respect of assets; the Company's capital stock, (ii) except for borrowings under existing credit facilitiessplit, incur any indebtedness for borrowed money combine or reclassify the company's capital stock or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, authorize the obligations issuance of any personother securities in respect of, in lieu of or make in substitution for any loans shares of the Company's capital stock or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intentionrepurchase, enter into any agreement redeem or otherwise make a commitmentacquire any of its securities, or propose to do any of the foregoing, except for amendments contemplated in this Agreement;
(c) except (i) as required by applicable law, (ii) pursuant to the terms of an agreement existing as of the Effective Dated (a copy of which shall have been provided to Investor), or (iii) in the ordinary course o business, increase the compensation, bonus or other benefits payable or to become payable to any of the Company's officers, directors or employees, grant any severance or termination pay or rights to, or enter into any employment or severance agreement with, any of the Company's officers, directors or employees, increase any benefits payable under existing severance or termination pay policies or employment agreements or establish, adopt, enter into or, except as required by applicable law, terminate or amend, any employee benefit plan.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, Pending the Closing. During the ------------------------------------------------------ period from the date hereof to the Closing, unless the Buyer Group otherwise agrees in writing, the Company shall conduct its business in the ordinary course, consistent with past practice. Without limiting the generality of and in addition to the foregoing, except as otherwise expressly provided in this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except or as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule5.1, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing, neither the Company nor shall not do any of its subsidiaries shallthe following; provided, directly or indirectly-------- however, that if the Company is required by Law to do any of the following, it shall give the Buyer Group advance notice of any such action:
(a) amend its articles of incorporation, certificate of incorporation or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsbylaws;
(b) authorize for issuance, issue, sell, pledgedeliver or agree or commit to issue, dispose of, grant, encumber, sell or authorize deliver (whether through the issuance, sale, pledge, disposition, grant issuance or encumbrance of, (i) any shares granting of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities commitments, subscriptions, rights to purchase or other rights otherwise) any stock of any kind to acquire class or any other securities;
(c) split, combine or reclassify any shares of such its capital stock, declare, set aside or pay any dividend (other than a cash dividend not to exceed an aggregate of $1,300,000, to be declared and paid prior to the close of business on December 31, 2001) or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or redeem or otherwise acquire any of its securities;
(d) (i) incur or assume any obligations under any revolving credit facilities, term loans, notes or lines of credit or loans due to banks, lending or similar financial institutions or any other ownership interest Person (including prepayment fees, if any) (collectively, "Institutional Indebtedness"); (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (iii) make any loans, advances or capital contributions to, or investments in, any other Person;
(e) enter into, adopt or amend (except as required by law) any bonus (other than year-end cash bonuses payable to employees of the Company in an aggregate amount not to exceed $775,000, to be paid prior to the close of business on January 3, 2002), profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreements, trusts, plans, funds or other arrangements of or for the benefit or welfare of any employee, or increase in the compensation or fringe benefits of any employee or pay any material benefit not required by any existing plan and arrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units);
(f) except as required under section 6.13 hereof, take any phantom interest), of the Company action to terminate or materially amend any of its subsidiaries employee benefit plans with respect to or (ii) any assets for the benefit of the Company or any of its subsidiariesemployees;
(cg) except in accordance with the Plan ordinary course of Liquidation and solely its business, pay, discharge or satisfy before it is due any claim or liability of the Company, or fail to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable such item in cash, stock, property or otherwise, with respect to any a timely manner given the prior practices of its capital stockthe Company;
(dh) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or cancel any material amount debts or waive any substantial claims or rights of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets substantial value except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(fi) increase the compensation payable to its directors change any accounting principle or officers method or, except as required by any Law, make, amend or hire terminate any employeeselection or any Tax accounting method or procedure;
(gj) take or suffer any actionaction that would result in the creation, other than actions required by GAAP or consent to the imposition, of any Lien on any of the properties or assets of the Company except in the ordinary course of the Company's business, with respect to accounting policies or procedures;
(hk) terminateamend, repealwaive, amend surrender or terminate or agree to the amendment, waiver, surrender or termination of any Material Contract, Lease or Approval or modify any arrangement with any customer of the Company;
(l) except in the ordinary course of the Company's business consistent with past practice, extend or renew any Material Contract;
(m) acquire, sell, lease, transfer or dispose of any of its properties or assets other than inventory acquired or sold in the ordinary course of the Company's business, or enter into any commitment or transaction or acquire any business or entity;
(n) enter into any Contract to do, or take, or agree in writing or otherwise changeto take or consent to, or take any action inconsistent with of the terms of, the Plan of Liquidationforegoing actions; or
(io) announce an intentionsell, lease, transfer or dispose of any Owned Real Property or enter into any commitment or agreement or otherwise make a commitment, to do any of the foregoingso.
Appears in 1 contract
Conduct of Business by the Company. Pending the Merger. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the date that new directors are appointed earlier to occur of the Board pursuant to Section 3 termination of Annex B heretothis Agreement or the Effective Time, except as contemplated by this Agreement, unless Parent shall otherwise agree in writing, and except as set forth in Section 6.01 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of Letter:
(a) the Company and shall conduct its subsidiaries shall be conducted business only in, and the Company and its subsidiaries shall not take any action except in, the ordinary course of business, consistent with past practice; and Purchaser the Company shall not cause use its reasonable best efforts to preserve intact the business organization of the Company, and to maintain (i) the services of the present officers, employees and consultants of the Company and (ii) its subsidiaries to existing relations with suppliers, creditors, customers, business associates and others having business dealings with it; and
(b) without limiting the generality of the foregoing, the Company shall not take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing actions:
(ai) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsLaws;
(bii) issue, sell, pledge, dispose of, grant, of or encumber, or authorize the issuance, sale, pledge, disposition, grant disposition or encumbrance of, (i) any shares of capital stock of any class of capital stock or other ownership interest of the Company or any of its subsidiariesother equity interest, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership equity interest (including, without limitation, any phantom interest), of in the Company or any (except for the issuance of its subsidiaries or (ii) any assets shares of Common Stock pursuant to the Company or any exercise of its subsidiariesOptions outstanding on the date hereof);
(ciii) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, stock or property or otherwise, with any combination thereof) in respect to of any of its capital stockstock or any other equity interest, including any constructive or deemed distributions, and any distribution in connection with the adoption of a shareholders rights plan, or make any other payments to stockholders in their capacity as such;
(div) reclassify, combine, split, subdivide combine or reclassify any of its capital stock or any other equity interest or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any other equity interest;
(v) redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockstock or any other equity interests;
(ivi) (A) purchase, acquire, sell, transfer, lease, license, mortgage, encumber or dispose of any material assets; (B) acquire (including, without limitation, by merger, consolidation, consolidation or acquisition of stock or assets or any other business combinationotherwise) any corporation, partnership, partnership or other business organization or any division thereof, real property or any material amount of assets; (iiC) except for borrowings under existing credit facilities, incur or assume any indebtedness for borrowed money or issue other liability; (D) modify, amend or terminate any debt securities confidentiality agreements, standstill agreements or assume, guarantee Company Material Contracts to which the Company is a party or endorseby which it is bound, or otherwise as an accommodation become responsible forwaive, the obligations of release or assign any person, material rights or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any actionclaims, other than actions required by GAAP or in the ordinary course of business, consistent with past practice; (E) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, other than in the ordinary course of business, consistent with past practice; (F) make any loans, advances or capital contributions to, or investments in, any other Person; or (G) other than in the ordinary course of business, consistent with past practice, enter into any material commitment, transaction, contract or agreement, including any of the following entered into outside the ordinary course of business (i) any material capital expenditure, (ii) any material contract or agreement outside the ordinary course of business, (iii) any contracts or agreements that cannot be canceled on notice of thirty (30) days or less and (iv) any noncompete agreements or other agreements that limit the ability of the Company to conduct any line of business;
(vii) increase the compensation, severance or other benefits payable or to become payable to its directors, officers or employees, other than increases in salary or wages of employees of the Company in accordance with past practice or pursuant to binding commitments made prior to the date hereof, or grant any severance or termination pay (except payments required to be made under the Plans or other obligations existing on the date hereof in accordance with the terms of such obligations) to, or enter into any employment or severance agreement with, any employee of the Company, or establish, adopt, enter into or amend any collective bargaining agreement, Plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except, in each case, as may be required by law;
(viii) pay, repurchase, discharge or xxxxxxx xxx xx xxx xxxxxxxx xxxxxs, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business, consistent with past practice, or pursuant to contractual requirements existing on the date hereof, of claims, liabilities or obligations reflected or reserved against, in, or contemplated by, the financial statements (or the notes thereto) of the Company;
(ix) take any action to change accounting policies or procedures or any of its methods of reporting income, deductions or other items for income tax purposes, except as required by a change in GAAP, SEC position or applicable law occurring after the date hereof;
(x) approve or authorize any action to be submitted to the stockholders of the Company for approval other than pursuant to this Agreement;
(xi) make or change any material election with respect to accounting policies Taxes, agree or proceduressettle any material claim or assessment in respect of Taxes, or agree to an extension or waiver of the limitation period to any material claim or assessment in respect of Taxes;
(hxii) terminate, repeal, amend or otherwise changevoluntarily take, or take commit to take, any action inconsistent that would or is reasonably likely to result in any of the conditions to the Tender Offer set forth on Annex A or the conditions to the Merger set forth in Article 8 not being satisfied or make any representation or warranty of the Company contained herein that is not qualified as to materiality inaccurate in any material respect, or any representation or warranty that is qualified as to materiality untrue in any respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company, Parent or Purchaser to consummate the transactions contemplated hereunder, in accordance with the terms of, hereof or materially delay such consummation;
(xiii) wind-up or otherwise eliminate the Plan of LiquidationSpecial Committee; or
(ixiv) agree, authorize or announce an intention, enter into any agreement or otherwise make a commitment, to do take any of the foregoingactions described in subsections (i) through (xiii) above.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from Pending the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth Merger Unless Parent shall otherwise agree in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreementwriting, the Plan of Liquidation and the Settlement Agreement, the businesses business of the Company and its subsidiaries shall be conducted in and only in, and the Company and its subsidiaries shall not take any action except in, the ordinary course of business and Purchaser in a manner consistent with past practice and in accordance with applicable law. The Company shall not cause use commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and its subsidiaries to take any action preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except in, accordance with as otherwise contemplated by this Agreement, the Settlement Company shall not, between the date of this Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallEffective Time, directly or indirectlyindirectly do, or propose to do, any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed:
(a) amend or otherwise change its Certificate Articles of Incorporation or By-laws or equivalent organizational documentsBylaws;
(b) except for the issuance of shares of Company Common Stock or Company Preferred Stock upon the exercise or conversion of currently outstanding options, warrants or convertible notes, issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber, encumber or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, Encumbrance of (i) any shares of capital stock of any class of capital stock or other ownership interest of the Company or any of its subsidiariesCompany, or (ii) any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), ) of the Company or any of its subsidiaries Company, or (iiiii) any assets of the Company or any of its subsidiariesCompany;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stockstock or other securities, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or subdivide, redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockstock or other securities;
(e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combinationassets) any corporation, partnership, other business organization or any division thereof, real property thereof or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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 personPerson, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of businessbusiness and consistent with past practice; (iii) enter into any contract or agreement other than in accordance the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $25,000 or capital expenditures which are, in the Plan aggregate, in excess of Liquidation$100,000 for the Company taken as a whole; (v) enter into any agreement in which the obligation of the Company exceeds $25,000 or which shall not terminate or be subject to termination for convenience within 30 days following execution; (vi) license any Technology or IP Rights, except nonexclusive licenses to end users of the Company's products granted in the ordinary course of the Company's business, consistent with past practice; or (ivvii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses subsection (ii) and (iiie);
(f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to its directors officers, employees, agents or officers consultants, or hire grant any employeesseverance 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 Employee Benefit Plan, collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, benefit or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(g) take any action, other than reasonable and usual actions required by GAAP or in the ordinary course of businessbusiness and consistent with past practice, with respect to accounting methods, policies or proceduresprocedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable);
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent that would prevent Parent from being able to account for the Merger as a pooling of interests whether or not permitted by the provisions of this Article VI;
(i) make any material Tax election or settle or compromise any Tax liability;
(j) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice;
(k) take any action that would or is reasonably likely to result in any of the terms ofrepresentations or warranties of the Company set forth in this Agreement being untrue in any material respect, or in any covenant of the Plan Company set forth in this Agreement being breached, or in any of Liquidationthe conditions to the Merger specified in Article IV not being satisfied;
(l) take any action of the type covered in Section 2.7 above; or
(im) announce an intention, enter into any agreement or otherwise make a commitment, agree to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company covenants and agrees that, during the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, Effective Time (unless Investor shall otherwise agree in writing and except as otherwise contemplated by this Agreement):
(a) Except as set forth in Section 6.01 on Schedule 6.1(a) hereto, the Company will and will cause each of the Disclosure Schedule or as contemplated by any other provision Subsidiaries to conduct its operations according to its ordinary and usual course of this Agreementbusiness consistent with past practice, seek to preserve intact its current business organizations, and, to the Plan extent consistent with the foregoing, seek to keep available the services of Liquidation its current officers and the Settlement Agreementemployees and preserve its relationships with customers, the businesses of the Company suppliers and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance others having business dealings with this Agreement, the Settlement Agreement and the Plan of Liquidationit. Without limiting the preceding sentencegenerality of the foregoing, and except as disclosed otherwise permitted in Section 6.01 of the Disclosure Schedulethis Agreement, prior to the date that new directors are appointed to the Board pursuant to Section 3 Effective Time, none of Annex B hereto, neither the Company nor any the Subsidiaries will, without the prior written consent of its subsidiaries shallInvestor, directly or indirectly:
which consent shall not be unreasonably withheld, (ai) amend or except as otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) provided in this Agreement, issue, deliver, sell, pledge, dispose of, grant, pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge, disposition, grant disposition or pledge or other encumbrance of, of (iA) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesadditional shares, or any optionssecurities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares, or any rights, warrants, convertible securities options, calls, commitments or any other rights agreements of any kind character to purchase or acquire any shares of such capital stockor any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares, or (B) any other ownership interest (includingsecurities in respect of, without limitationin lieu of, any phantom interest)or in substitution for, of shares outstanding on the Company or any of its subsidiaries or date hereof, (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectlypropose to redeem, purchase or otherwise acquire, any of its outstanding securities, (iii) split, combine, subdivide or reclassify any shares of its capital stock;
stock or declare, set aside of payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any shares or otherwise make any payments to stockholders in their capacity as such, (iiv) acquire (includingadopt a plan of complete or partial liquidation, without limitationdissolution, by merger, consolidation, restructuring, recapitalization or acquisition other reorganization (other than the Merger), (v) adopt any amendments to its Restated Certificate of stock Incorporation or assets Bylaws or alter through merger, liquidation, reorganization, restructuring or in any other business combinationfashion the corporate structure or ownership of the Subsidiaries, (vi) change any corporation, partnership, other business organization of the accounting principles or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorsepractices used by it, or otherwise as an accommodation become responsible for(vii) authorize, recommend, propose or announce any intention to do any of the obligations of any personforegoing, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to do any matter of the foregoing.
(b) Except as set forth on Schedule 6.1(b), none of the Company nor the Subsidiaries shall (without the prior written consent of Investor, which consent shall not be unreasonably withheld)
(i) grant any increases in this Section 6.01(ethe compensation of any of its directors, officers or employees, except in the ordinary course of business and in accordance with its customary past practices, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the Company's benefit, severance, pension or employment plans, agreements or arrangements as in effect on the date hereof except as may be required to comply with applicable Law, (iii) enter into any new or materially amend any existing employment, consulting or severance agreement with any director, officer, consultant or employee (except that the Company may hire replacement employees in the ordinary course of business and consistent with past practice), (iv) except as permitted may be required to comply with applicable Law, become obligated under any new pension plan, welfare plan, multi-employer plan, employee benefit plan, severance plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing any benefits thereunder, (v) make, by clauses means of merger, consolidation or otherwise, any acquisition or disposition of securities or other assets (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or (1) in connection with cash management procedures in the ordinary course of business, (2) acquisitions or dispositions of assets not exceeding $500,000 in the aggregate or (3) capital expenditures of no more than $500,000 in the aggregate), (vi) make any commitment to make any capital expenditures or enter into any lease (other than sale/leaseback or build-to-suit transactions and renewals or extensions of leases executed in the ordinary course of the Company's business) requiring payments in excess of $500,000 in the aggregate, (vii) other than under the Company's existing lines or letters of credit, or in the ordinary course of business consistent with respect to accounting policies past practice, incur any indebtedness or procedures;
enter into any letters of credit or capitalized leases in excess of $500,000 in the aggregate or make any loans, advances or capital contributions to, or investments in, any other person, (hviii) terminatemake any material tax election or settle or compromise any material Tax liability, repeal(ix) modify, amend or otherwise changeterminate any material Contract to which the Company or any Subsidiary is a party or by which their respective assets are bound or waive, release or take assign any action inconsistent with rights or claims, other than in the terms ofordinary course of business, the Plan of Liquidation; or
(ix) announce an intention, enter into any agreement material Contract relating to the provision of services by the Company or otherwise make a commitmentthe sale or marketing by third parties of the Company's or any Subsidiary's services other than in the ordinary course of business, (xi) accelerate the collection of receivables or delay the payment of payables, or (xii) authorize, recommend, propose or announce any intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(c) The Company will cause its Subsidiaries to use reasonable efforts to maintain in full force and effect all of their presently existing policies of insurance or insurance comparable to the coverage afforded by such policies; provided, the Company shall not be required to consent to premium increases which the Board of Directors of the Company considers unreasonable, in which event the Company shall cause the Subsidiaries to substitute therefor policies with substantially similar terms and conditions.
Appears in 1 contract
Samples: Merger Agreement (Lpa Services Inc)
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except Except (i) as set forth in Section 6.01 of the Company Disclosure Schedule Letter; (ii) as expressly required by this Agreement; (iii) as required by applicable Law; or as contemplated by any other provision (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) from the date of this AgreementAgreement to the Effective Time, (A) the Plan of Liquidation Company shall, and shall cause each Company Subsidiary to, (x) conduct the Settlement Agreement, the businesses business of the Company and each Company Subsidiary in the ordinary course of business consistent with past practice and (y) use commercially reasonable efforts to ensure that it preserves intact in all material respects its subsidiaries shall be conducted incurrent business organization, assets and technology, keeps available the services of the Company Employees in all material respects and maintains its relations and goodwill with material customers, suppliers, landlords, and other Persons having material business relationships with the Company in all material respects and its subsidiaries (B) the Company shall not, and shall not take permit any action except inCompany Subsidiary to, and Purchaser shall not cause the Company and its subsidiaries to take do any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing:
(a) amend (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities, other than as permitted by Section 6.01(b); or (iii) repurchase, redeem or otherwise change its Certificate acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of Incorporation the Company or By-laws any Company Subsidiary convertible into or equivalent organizational documentsexchangeable or exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any such capital stock, securities or interests, except for acquisitions, or deemed acquisitions, of Company Common Stock or other equity securities of the Company in connection with (A) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”), (B) required tax withholding in connection with the exercise, vesting and settlement of Company Stock Awards and other awards pursuant to the Company Stock Plans, (C) forfeitures of Company Stock Awards, (D) conversion or repurchase of the Convertible Notes pursuant to the Indenture or (E) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(b) issue, deliver, sell, pledge, dispose of, grant, encumber, pledge or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, otherwise subject to any Lien (other than Liens imposed by applicable securities Laws): (i) any shares of any class of capital stock or other ownership interest equity interests or voting securities of the Company or any Company Subsidiary other than (A) the issuance of Company Common Stock (x) upon the due exercise, vesting or settlement of Company Stock Awards issued pursuant to the Company Stock Plans, in each case outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect at such time, (y) prior the Final Offering, pursuant to the Company ESPP or (z) upon the conversion of the Convertible Notes pursuant to the Indenture, or (B) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iii) any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iv) any Company Stock Awards or other rights issued by the Company or any Company Subsidiary that are linked in any way to the price of any class of Company Capital Stock or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Company Subsidiary; or (v) any Company Voting Debt;
(c) (i) amend the Company Charter or the Company Bylaws; (ii) amend the charter or organizational documents of any Company Subsidiary, or (iii) amend any term of any securities in the Company or any of its subsidiariesSubsidiaries, or any optionsexcept, warrants, convertible securities or other rights in the case of any kind to acquire any shares each of such capital stock, or any other ownership interest the foregoing clauses (including, without limitation, any phantom interesti) and (ii), as may be required by Law or the rules and regulations of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockNASDAQ;
(d) reclassifycreate any Company Subsidiary;
(e) make or adopt any material change in its accounting methods, combineprinciples or practices, splitexcept as may be required by a change in GAAP or Law;
(f) directly or indirectly acquire, subdivide dispose of, sell, assign or redeemabandon or agree to acquire, dispose of, sell, assign or abandon in any transaction any equity interest in or business or material assets of any Person or division thereof, except acquisitions or dispositions with respect to transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(g) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise subject to any Lien (other than Permitted Liens), or purchase otherwise dispose of any material properties or otherwise acquireassets or any material interests therein other than: (i) pursuant to Contracts in existence on the date of this Agreement; or (ii) with respect to transactions between the Company, directly on the one hand, and any wholly owned Company Subsidiary, on the other hand, or indirectlybetween wholly owned Company Subsidiaries;
(h) incur any Indebtedness, any except for (i) the incurrence of its capital stockIndebtedness not to exceed $2,000,000 in the aggregate; (ii) Indebtedness in replacement of existing Indebtedness, in the same or a lesser principal amount and on terms that are no less favorable to the Company in the aggregate than the Company’s existing indebtedness; (iii) Indebtedness solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; or (iii) the incurrence of Indebtedness pursuant to the Credit Agreement as in effect on the date hereof in the ordinary course of business consistent with past practice;
(i) acquire except as required by the express terms of any Company Benefit Plan or Collective Agreement, in each case as in effect on the date hereof, (includingi) establish, without limitationadopt, by mergeramend or terminate any Company Benefit Plan or create or enter into any plan, consolidationagreement, program, policy, trust, fund or acquisition other arrangement that would be a Company Benefit Plan if it were in existence as of stock or assets or any other business combination) any corporation, partnershipthe date of this Agreement, other business organization than any such amendments to existing Company Benefit Plans that do not materially increase the annual cost to the Company of maintaining such Company Benefit Plan; provided that no such amendment shall include or increase any division thereof, real property severance or any material amount of assetsequity payments; or (ii) except for borrowings under existing credit facilitiesincrease in any manner the compensation (including severance, 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 change in control and retention compensation) of any personcurrent or former employees of the Company or its Subsidiaries, or make any loans or advancesother than base salary increases for employees other than executive officers in connection with the Company’s merit review process, or grant any security interest in any of its assets except provided that such merit review process is done in the ordinary course of business; business and at a time and manner consistent with the Company’s past practices, and the aggregate amount of the increases does not exceed 3.5%,
(iii) enter into pay or award, or commit to pay or award, any contract bonuses or agreement other than in accordance with the Plan of Liquidation; incentive compensation (whether cash, equity or equity-based), including any transaction-related bonuses or (iv) enter into accelerate the time of vesting or amend payment of any contract, agreement, commitment award under any Company Benefit Plan or otherwise;
(j) (i) hire any employee or engage any individual contractor other than hiring or engaging such individuals in the ordinary course of business consistent with the Company’s past practice for positions or services below the level of Vice President and/or whose targeted annual base salary or fee arrangement with respect to is less than $200,000; or (ii) terminate the employment of any matter set forth in this Section 6.01(esuch employee other than for cause;
(k) except as permitted by clauses (iiSection 3.03(b) or Section 7.06, settle or compromise any material litigation, or release, dismiss or otherwise dispose of any claim, liability, obligation or arbitration, other than settlements or compromises of litigation or releases, dismissals or dispositions of claims, liabilities, obligations or arbitrations that involve the payment of monetary damages in an amount not in excess of $2,000,000 in the aggregate by the Company or any Company Subsidiary and (iii)do not involve any injunctive or other non-monetary relief or impose restrictions on the business or operations of the Company and the Company Subsidiaries, taken as whole;
(fl) increase encumber, convey title (in whole or in part), license or make a similar grant under any material Intellectual Property Rights owned by or exclusively licensed to the compensation payable Company or any Company Subsidiary, other than non-exclusive licenses to its directors or officers or hire any employeescustomers in the ordinary course of business consistent with past practice;
(gm) intentionally take any action or fail to take any action, if such action or failure to take such action would reasonably be likely to result in the loss, lapse, abandonment, invalidity or unenforceability of any Company Intellectual Property, except for Company Intellectual Property which, in the reasonable judgment of the Company or a Company Subsidiary is determined to not be material to its business, consistent with past practice;
(n) other than actions as required by applicable Law or GAAP or in the ordinary course of business, make, change or revoke any material election with respect to Taxes or any election pursuant to Section 7701 of the Code and the Treasury Regulations thereunder, file any material amended Tax Return, change any material accounting policies method for Taxes, settle or procedures;
(h) terminatecompromise any material Tax liability, repeal, amend enter into any closing agreement with respect to any material Tax or otherwise change, or take surrender any action inconsistent with the terms of, the Plan of Liquidationright to claim a material Tax refund; or
(io) announce an intentionincur any capital expenditures in excess of the Company’s existing budget for capital expenditures as approved by the Company Board and made available to Parent;
(p) materially amend, modify, renew or terminate any Real Estate Lease or enter into any new material lease, sublease, license or other agreement for the use or otherwise occupancy of any real property;
(q) enter into a new line of business or abandon or discontinue any existing line of business;
(r) enter into, amend, accelerate, cancel, fail to exercise an expiring renewal option, grant a material waiver under or modify in any material respect, terminate or transfer to any Person other than a Company Subsidiary any Material Contract or any contract that would constitute a Material Contract if in effect as of the date of this Agreement, in each case, other than in the ordinary course of business consistent with past practice;
(s) except as provided under this Agreement, adopt a plan of agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or file a petition in bankruptcy under any provisions of applicable bankruptcy law on its behalf, or consent to the filing of any bankruptcy petition against it under any similar applicable Law;
(t) make or forgive any loan to any other Person (other than (A) the advancement of expenses to its employees in connection with the performance of their duties in the ordinary course of business consistent with past practice or (B) to any wholly-owned Subsidiary in the ordinary course of business consistent with part practice);
(u) enter into a commitmenttransaction with any stockholder, director or executive officer of the Company that would be required to do be reported by the Company pursuant to Item 404 of Regulation S-K; or
(v) enter into any binding commitment to take any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Carbonite Inc)
Conduct of Business by the Company. The Company covenants and agrees that, from the date of this Agreement until the date that new directors are appointed prior to the Board pursuant to Section 3 of Annex B heretoearliest of: (i) the Effective Date and (ii) the Transition Date, except as set forth unless Hydrogenics shall otherwise agree in Section 6.01 of the Disclosure Schedule writing or as otherwise expressly contemplated or permitted by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of :
(a) the Company shall, and shall cause each of its subsidiaries shall be conducted Material Subsidiaries to, conduct its and their respective businesses only in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause maintain their respective facilities, in the Company and its subsidiaries to take any action except in, accordance ordinary course of business consistent with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentspast practice;
(b) without limiting the generality of Subsection (a) above, and except as otherwise expressly required by this Agreement, and with respect to those matters disclosed in writing to Hydrogenics and with respect to the completion of which Hydrogenics has consented to (which consent shall not be unreasonably withheld), for transactions involving the Company and one or more wholly-owned Subsidiaries or between wholly-owned Subsidiaries and except for transactions involving amounts which, individually or in the aggregate, do not exceed $100,000, except with the consent of Hydrogenics, the Company shall not directly or indirectly do, and shall cause each of its Material Subsidiaries not to:
(i) issue, sell, award, pledge, dispose of, grantencumber or agree to issue, encumbersell, or authorize the issuance, saleaward, pledge, disposition, grant dispose of or encumbrance of, (i) encumber any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesCommon Shares, or any optionsOptions or Slangerup Inducement Options, warrantscalls, convertible securities conversion privileges or other rights of any kind to acquire any Common Shares or other securities or any shares of such capital stock, its Subsidiaries (other than pursuant to the exercise of Options issued under the Share Option Plan or any other ownership interest (including, without limitation, any phantom interestSlangerup Inducement Options), of the Company or any of its subsidiaries or ;
(ii) sell, pledge, lease, dispose of, encumber or agree to sell, pledge, dispose of or encumber any assets of the Company or any of its subsidiariesSubsidiaries or any interest in any asset of the Company or any of its Subsidiaries that has a value greater than $100,000, except in the ordinary course of business consistent with past practice;
(ciii) except in accordance with amend or propose to amend the Plan articles, by-laws or other constating documents of Liquidation and solely to the extent necessary for the Company or any of its Material Subsidiaries;
(iv) split, combine or reclassify any outstanding Common Shares;
(v) redeem, purchase or offer to qualify as a REIT, purchase any Common Shares or other securities of the Company or any shares or other securities of its Material Subsidiaries;
(vi) declare, set aside, make aside or pay any dividend or other distribution, payable distribution (whether in cash, stock, securities or property or otherwiseany combination thereof) in respect of any Common Shares except for dividends by any wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company;
(vii) reorganize, with respect to amalgamate or merge the Company or any of its capital stockSubsidiaries with any other Person;
(dviii) reclassify, combine, split, subdivide reduce the stated capital of the shares of the Company or redeem, or purchase or otherwise acquire, directly or indirectly, of any of its capital stockMaterial Subsidiaries;
(iix) acquire or agree to acquire (including, without limitation, by merger, consolidationamalgamation, or acquisition of stock or assets or otherwise) any Person, or make any investment either by purchase of shares or securities, contributions of capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other business combinationPerson, that has a value greater than $100,000;
(x) enter into, directly or indirectly, an investment in or acquisition of, whether individually or with any corporationother Person, partnershipany asset or an interest in any asset that has a value greater than $100,000, other business organization provided however that the Company may make such investments in short-term government grade instruments consistent with past practice;
(xi) incur or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, commit to incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities securities, except for the borrowing of working capital in the ordinary course of business and consistent with past practice, or assumeguarantee, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any person, other Person or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of businessbusiness consistent with past practice;
(xii) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Material Subsidiaries;
(xiii) pay, discharge, settle or satisfy any claims, liabilities or obligations other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the Company’s financial statements or incurred in the ordinary course of business consistent with past practice;
(xiv) authorize, recommend or propose any release or relinquishment of any contractual right, except in the ordinary course of business consistent with past practice;
(xv) waive, release, grant or transfer any rights of value or modify or change in any material respect any existing licence, lease, contract or other document, other than in the ordinary course of business consistent with past practice;
(xvi) increase the benefits payable or to become payable to its directors or officers (whether from the Company or any of its Subsidiaries), enter into or modify any employment, severance, or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer of the Company or member of the Board of Directors other than pursuant to agreements already entered into as disclosed in the Company Public Documents publicly available on SEDAR or in Schedule 4.13 to the Company Disclosure Statement; or
(xvii) in the case of employees who are not officers of the Company or members of the Board of Directors, take any action other than in the ordinary course of business and consistent with past practice (none of which actions shall be unreasonable or unusual) with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof;
(c) subject to Section 2.5, the Company shall not, and shall cause each of its Subsidiaries not to, establish, adopt, enter into, amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any bonus, profit sharing, thrift, incentive, compensation, stock option, restricted stock, pension, retirement, deferred compensation, savings, welfare, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers, current or former employees of the Company or its Subsidiaries;
(d) the Company shall use all reasonable commercial efforts to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) the Company shall:
(i) use all reasonable commercial efforts, and cause each of its Material Subsidiaries to use all reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its and their officers and employees as a group and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with them;
(ii) not take any action, or permit any of its Subsidiaries to take any action, which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect;
(iii) provide Hydrogenics with prompt written notice of any change (or any condition, event or development involving a prospective change) in the business, operations, assets, condition (financial or otherwise), prospects, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Company or any of its Subsidiaries, taken as a whole, which, when considered either individually or in the aggregate, would have a Company Material Adverse Effect;
(iv) not enter into or renew any agreement, contract, lease, licence or other binding obligation of the Company or its Material Subsidiaries: (i) containing (A) any limitation or restriction on the ability of the Company or its Material Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Hydrogenics or its Material Subsidiaries, to engage in any type of activity or business, (B) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of the Company or its Material Subsidiaries or, following consummation of the transactions contemplated hereby, all or any portion of the business of Hydrogenics or its Material Subsidiaries, is or would be conducted, or (C) any limit or restriction on the ability of the Company or its Material Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Hydrogenics or its Material Subsidiaries, to solicit customers or employees; (ii) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (iii) that involves or would reasonably be expected to involve payments in excess of $20,000 annually or $150,000 in the aggregate over the term of the contract and that is not terminable within 30 days of the Effective Date without payment by Hydrogenics or its Subsidiaries; and
(v) except with the consent of Hydrogenics (such consent not to be unreasonably withheld) or except as may be set forth in (i) its capital budget approved as of the date hereof, or (ii) any resolutions approved by its board of directors prior to the date hereof, copies of which budget and resolutions have been made available to Hydrogenics, not incur any capital expenditures or enter into any contract agreement obligating the Company or agreement other than its Subsidiaries to provide for future capital expenditures involving payments in accordance with excess of $20,000 individually or $150,000 in the Plan aggregate;
(f) the Company and each of Liquidation; its Subsidiaries shall:
(i) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all respects;
(ii) timely withhold, collect, remit and pay all Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable;
(iii) not make or rescind any material express or deemed election relating to Taxes;
(iv) not make a request for a Tax ruling or enter into any agreement with any taxing authorities or consent to any extension or waiver of any limitation period with respect to Taxes;
(v) not settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes; and
(vi) not change any of its methods of reporting income, deductions or accounting for income Tax purposes from those employed in the preparation of its income Tax Return for the tax year ended March 31, 2004, except as may required by applicable Laws; and
(g) the Company shall not authorize or propose, or enter into or amend modify any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitmentarrangement, to do any of the foregoingmatters prohibited by the other paragraphs of this Section 5.1. Notwithstanding the foregoing in this Section 5.1, with respect to any expenditures which have a monetary threshold expressed in this Section 5.1, the Company may exceed such expenditure threshold with the prior written consent of Hydrogenics, such consent not to be unreasonably withheld or delayed taking into account the Company’s past practices.
Appears in 1 contract
Samples: Support Agreement (Hydrogenics Corp)
Conduct of Business by the Company. The Company covenants and agrees that, from prior to the date of earlier of: (x) the Effective Date; and (y) the Transition Date, unless the Offeror shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement until the date that new directors are appointed to the Board pursuant to (including Section 3 of Annex B hereto, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of 8.3):
(a) the Company shall, and shall cause each of its subsidiaries shall be conducted Subsidiaries to, conduct its and their respective businesses only in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause maintain their respective stores and operations in the Company and its subsidiaries ordinary course of business consistent with past practice except as may be required in order to take any action except in, accordance comply with the terms of this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) without limiting the generality of Subsection 5.1(a) above, the Company shall not directly or indirectly, and shall cause each of its Subsidiaries not to:
(i) issue, sell, award, pledge, dispose of, grantencumber or agree to issue, encumbersell, or authorize the issuance, saleaward, pledge, disposition, grant dispose of or encumbrance of, (i) encumber any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesShares, or any optionsOptions, warrantscalls, convertible securities conversion privileges, “phantom” stock rights, deferred share units, or other rights of any kind to acquire any Shares or other securities or any shares of such capital stock, or any its Subsidiaries (other ownership interest (including, without limitation, any phantom interestthan pursuant to the exercise of existing Options issued under the Stock Option Plan), of the Company or any of its subsidiaries or ;
(ii) except in the ordinary course of business consistent with past practice, sell, pledge, lease, dispose of, encumber or agree to sell, pledge, dispose of or encumber any assets of the Company or any of its subsidiariesSubsidiaries or any interest in any asset of the Company or any of its Subsidiaries that, in either case, has a value greater than $100,000;
(ciii) except in accordance with amend or propose to amend the Plan articles, by-laws or other constating documents of Liquidation and solely to the extent necessary for the Company or any of its Subsidiaries;
(iv) split, combine or reclassify any outstanding Shares;
(v) redeem, purchase or offer to qualify as a REIT, purchase any Shares or other securities of the Company or any shares or other securities of its Subsidiaries;
(vi) declare, set aside, make aside or pay any dividend or other distribution, payable distribution (whether in cash, stock, securities or property or otherwiseany combination thereof) in respect of any shares, except for dividends paid in the ordinary course of business consistent with respect past practice not exceeding $0.20 per Share per fiscal quarter and for dividends by any wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company;
(vii) reorganize, amalgamate or merge the Company or any of its capital stockSubsidiaries with any other Person;
(dviii) reclassifyreduce the stated capital of the shares of the Company or of any of its Subsidiaries;
(ix) acquire or agree to acquire (by merger, combineamalgamation, split, subdivide acquisition of stock or redeemassets or otherwise) any Person, or make any investment either by purchase of shares or otherwise securities, contributions of capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other Person, or acquire, directly or indirectly, any asset or interest in any asset, that in each case has a value greater than $100,000 provided however that the Company may make acquisitions of its inventory or equipment in the ordinary course of business consistent with past practice or make such investments in short term investment grade instruments consistent with past practice and except for capital stockexpenditures as set out in the Company Disclosure Letter;
(ix) acquire (including, without limitation, by merger, consolidation, incur or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, commit to incur any indebtedness for borrowed money or any other liability or obligation or issue any debt securities in an aggregate amount greater than $250,000, except for the borrowing under existing credit facilities of working capital and except for capital leases in the ordinary course of business consistent with past practice, or assumeguarantee, guarantee or endorseindemnify, endorse or otherwise as an accommodation become responsible for, the obligations of any person, other Person (other than a wholly- owned Subsidiary) or make any loans or advances, advances to any Person (other than to the Company or grant its wholly-owned Subsidiaries);
(xi) take any security interest action or fail to take any action that would accelerate or trigger defaults or repayments in respect of any Material Contract or Appropriate Regulatory Approval;
(xii) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its assets Subsidiaries, except as set out in the Company Disclosure Letter;
(xiii) pay, discharge or satisfy any claims, liabilities or obligations exceeding $250,000 in the aggregate, other than the payment, discharge or satisfaction, in the ordinary course of businessbusiness consistent with past practice, of liabilities reflected or reserved against in the Company’s financial statements or incurred in the ordinary course of business consistent with past practice;
(xiv) waive, release, grant or transfer any rights of value or modify or change any existing licence, lease, contract or other document that has a value in excess of $100,000;
(c) the Company shall not, and shall cause each of its Subsidiaries not to:
(i) increase the fringe benefits payable or to become payable to its directors or officers (whether from the Company or any of its Subsidiaries); or enter into or modify any employment, severance, or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, directors or officers (whether from the Company or any of its Subsidiaries), except as set out in the Company Disclosure Letter; other than pursuant to and accordance with the terms of agreements already entered into as set out in the Data Room Information, as such agreements are in force on the date hereof; or
(ii) in the case of employees who are not officers of the Company or members of the Board of Directors, take any action other than in the ordinary course of business and consistent with past practice with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof, except as set out in the Company Disclosure Letter;
(d) subject to Section 2.4, the Company shall not, and shall cause each of its Subsidiaries not to, establish, adopt, enter into, amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any bonus, profit sharing, thrift, incentive, compensation, stock option, restricted stock, pension, retirement, deferred compensation, savings, welfare, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers, current or former employees of the Company or its Subsidiaries;
(e) the Company shall use reasonable commercial efforts to cause its current material insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re- insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(f) the Company shall:
(i) use reasonable commercial efforts, and cause each of its Subsidiaries, to use reasonable commercial efforts to preserve intact their respective business organizations and goodwill, to keep available the services of its and their officers and employees as a group and to maintain satisfactory relationships with licensees, franchisees, suppliers, distributors, customers and others having business relationships with them, in all material respects;
(ii) not take, or permit any of its Subsidiaries to take, any action (or omit to take any action), which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect;
(iii) promptly notify the Offeror orally and in writing of the occurrence of any Company Material Adverse Effect and of any material governmental or third party complaints, claims, investigations or proceedings (or communications indicating that the same are being contemplated) and of any death, disability, resignation, termination of employment or other departure of any senior officer of the Company or any of its Subsidiaries;
(iv) not enter into, materially amend or terminate any Material Contract, except for Material Contracts referred to in paragraph 5.1(f)(iv) of the Company Disclosure Letter which may be entered into, amended or terminated as required in the ordinary course of business provided that the terms and dollar amounts of such Material Contracts are consistent with past practice;
(v) not incur any capital expenditures or enter into any contract agreement obligating the Company or agreement its Subsidiaries to provide for future capital expenditures outside the ordinary course of business that involve payments in excess of $250,000 in the aggregate, except for construction of stores and leasehold improvement in the ordinary course of business in connection with any lease as disclosed in the Data Room Information and capital expenditures undertaken pursuant to agreements entered into prior to the date of this Agreement and disclosed in the Data Room Information;
(vi) not settle or compromise, or agree to settle or compromise, any claim brought by any present, former or purported holder of any securities of the Company in connection with the Offer or any Compulsory Acquisition Transaction or Subsequent Acquisition Transaction prior to the Effective Date without the prior written consent of the Offeror not to be unreasonably withheld; and
(vii) not make any changes to existing accounting policies other than as required by applicable Law;
(g) except as set out in accordance with the Plan Company Disclosure Letter, the Company and each of Liquidation; its Subsidiaries shall:
(i) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects;
(ii) timely withhold, collect, remit and pay all Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable;
(iii) not make or rescind any express or deemed election relating to Taxes;
(iv) not make a request for a Tax ruling or enter into any agreement with any taxing authorities or consent to any extension or waiver of any limitation period with respect to Taxes;
(v) not settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes in an amount exceeding $250,000 in the aggregate;
(vi) not change any of its methods of reporting income, deductions or accounting for income Tax purposes from those employed in the preparation of its income Tax Return for the tax year ended January 28, 2006, except as may required by applicable Laws; and
(vii) promptly inform the Offeror as to any material communication in respect of Taxes received by it after the date of this Agreement from any Governmental Entity;
(h) the Company shall not, and shall not permit its Subsidiaries to, authorize or enter into or amend modify any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitmentarrangement, to do any of the foregoingmatters prohibited by the other paragraphs of this Section 5.1;
(i) the Company shall not, and shall cause each of its Subsidiaries to not, prior to the Effective Time sell, pledge, lease, dispose of any assets of the Company or any of its Subsidiaries (or any interest therein) to a Supporting Shareholder (or Affiliate thereof but excluding the Company or a Subsidiary of the Company), except for dividends paid in the ordinary course and except as provided for under agreements or arrangements existing as of the date hereof that have been disclosed in the Data Room Information; and
(j) the Company shall not, and shall cause each of its Subsidiaries to not, incur any indebtedness for borrowed money or any other liability or obligation or issue any debt securities to a Supporting Shareholder (or Affiliate thereof but excluding the Company or a Subsidiary of the Company), except in the ordinary course of business or required pursuant to agreements or arrangements existing as of the date hereof that have been disclosed in the Data Room Information or that are referred to in Subsection 4.16(g).
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until and continu- ing through the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, except as set forth expressly contemplated or permitted by this Agreement or with the prior written con- sent of Buyer, the Company shall (a) carry on its business in Section 6.01 the ordinary course consistent with past practice; (b) make all reasonable efforts to preserve its present business organiza- tion and relationships; (c) make all reasonable efforts to keep available the present services of its employees; and (d) make all reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business. Without limiting the generality of the Disclosure Schedule foregoing, except as expressly permitted by this Agreement or as contemplated consented to in writing by any other provision of this AgreementBuyer, the Plan of Liquidation Company shall not di- rectly or indirectly and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser Shareholder shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyto:
(ai) amend, or agree to amend or otherwise change its Certificate of Incorporation or By-laws (or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumbercomparable instruments), or authorize the issuancemerge with or into or consolidate with, saleor agree to merge with or into or consolidate with, pledgeany other Per- son, disposition, grant subdivide or encumbrance of, (i) in any way reclassify any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or change or agree to change in any other ownership interest (including, without limitation, any phantom interest), of manner the Company or any rights of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its outstanding capital stock;
(dii) reclassify, combine, split, subdivide issue or redeemsell or purchase, or issue any op- tion, warrant, convertible or exchangeable security, right, subscription, call, unsatisfied pre-emptive right or other agreement or right of any kind to purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidationexchange or conversion) (each a "Right"), or acquisition enter into any contracts, agreements or arrangements to issue or sell, any shares of stock or assets or any other business combinationits capital stock;
(iii) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any additional indebtedness for borrowed money or issue any debt securities or assumeguarantee the indebtedness of other Persons, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance business consistent with the Plan of Liquidation; or past practice;
(iv) enter into waive, or amend agree to waive, any contract, agreement, commitment or arrangement with respect right of mate- rial value to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)its business;
(fv) increase the compensation payable make, or agree to make, any material change in its directors accounting methods or officers practices for Tax or hire account- ing purposes or make, or agree to make, any employeesmaterial change in depreciation or amortization policies or rates adopted by it for Tax or accounting purposes unless oth- erwise required by law or GAAP;
(gvi) take materially change, or agree to materially change, any actionof its business policies or practices that relate to its business, including, without limitation, fee structure, fee waivers, expense reimbursement, in- terest rate management, security selection, sales and marketing, personnel, budget or product development pol- icies;
(vii) make any loan or advance to any of the Share- holder or the Company's Affiliates, officers, directors, employees, consultants, agents or other representatives (other than actions required by GAAP or travel advances made in the ordinary course of businessbusiness consistent with past practice), or make any other loan or advance otherwise than in the ordinary course of business consistent with respect to accounting policies or procedurespast practice;
(hviii) terminatesell, repealoffer to sell, amend abandon or otherwise changemake any other disposition of any of its material assets, except in the ordinary course of business consistent with past prac- xxxx; xxxxx or suffer, or take agree to grant or suffer, any action inconsistent with the terms of, the Plan Encumbrance on any of Liquidation; orits material assets;
(iix) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.except as set forth in Schedule 4.1
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 5.1(a) of the Company and its subsidiaries Disclosure Letter, (ii) as required by applicable Law, (iii) as consented to in writing in advance by Parent (which consent shall not be conducted inunreasonably withheld, and conditioned or delayed), (iv) as otherwise specifically required by this Agreement or (v) for transactions solely between or among the Company and any of its subsidiaries Subsidiaries, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice in all material respects and use reasonable best efforts to preserve intact its business organization, preserve its assets, rights and properties in good repair and condition, and preserve its goodwill and its relationships with employees, customers, suppliers, licensors, licensees, distributors and others having business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except (i) as set forth in Section 5.1(a) of the Company Disclosure Letter, (ii) as required by applicable Law, (iii) as consented to in writing in advance by Parent (which consent shall not take any action except inbe unreasonably withheld, and Purchaser shall not cause conditioned or delayed), (iv) as otherwise specifically required by this Agreement or (v) for transactions solely between or among the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallSubsidiaries, directly or indirectlythe Company shall not, and shall not permit any of its wholly-owned Subsidiaries to:
(ai) amend (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned Subsidiary of the Company to its parent, (B) purchase, redeem or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any acquire shares of any class of capital stock or other ownership equity interests of the Company or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests, except for purchases, redemptions or other acquisitions of Company Common Stock in connection with the forfeiture, exercise or vesting of any Company Stock Option or Company Restricted Stock or (C) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests, other than in connection with the exercise of any Company Stock Option or Company Restricted Stock;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock or other equity interests or any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of the Company on a deferred basis or other rights linked to the value of shares of Company Common Stock (other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on February 28, 2011 in accordance with their terms as in effect on such date, (B) the issuance of shares of Company Common Stock pursuant to the terms of the Company ESPP as in effect on the date of this Agreement and (C) grants of equity compensation to newly hired employees that are below vice president level in the ordinary course of business consistent with past practice, provided, for purposes of this clause (C), that the number of shares of Company Common Stock so granted, including such shares as may be subject to stock options so granted, shall not exceed 200,000);
(iii) amend its articles of incorporation or by-laws (or similar organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the Company and its Subsidiaries, other than (1) components, inventory or supplies acquired in the ordinary course of business consistent with past practice and (2) new capital expenditures, which shall be subject to the limitations of clause (viii) below;
(v) directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose in whole or in part of any of its material properties, assets or rights or any interest therein, except in the ordinary course of business consistent with past practice;
(vi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(vii) (A) incur, create, assume or otherwise become liable for, or repay or prepay, any indebtedness for borrowed money, any obligations under conditional or installment sale Contracts or other retention Contracts relating to purchased property, any capital lease obligations or any guarantee of any such indebtedness of any other Person, issue or sell any debt securities, options, warrants, calls or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of any other Person, enter into any “keepwell” or other agreement to maintain any financial statement condition of any other Person or enter into any arrangement having the economic effect of any of the foregoing (collectively, “Indebtedness”), or amend, modify or refinance any Indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(viii) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto that is in excess of $300,000 individually or $1,000,000 in the aggregate;
(A) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than (1) the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice and (2) payments permitted by clause (xi) below, (B) cancel any material indebtedness or (C) waive, release, grant or transfer any right of material value;
(x) (A) modify, amend, terminate, cancel or extend any Company Material Contract, which if so modified, amended, terminated or cancelled would reasonably be expected to adversely affect in any material respect the Company or any of its Subsidiaries, taken as a whole, or (B) enter into any Contract that if in effect on the date hereof would be a Company Material Contract, other than in the case of each of (A) and (B) above, in the ordinary course of business consistent with past practice;
(xi) commence any Action (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of money damages not in excess of $200,000 individually or $500,000 in the aggregate, in any case without the imposition of any equitable relief on, or the admission of wrongdoing by, the Company;
(xii) change its financial accounting methods, principles or practices, except insofar as may be required by a change in GAAP, applicable Law or the Company’s outside auditor, or revalue any of its material assets;
(xiii) settle or compromise any material liability for Taxes, amend any material Tax Return, make or revoke any material Tax election, adopt or change any method of accounting for Tax purposes (except for any such adoption or change of method as may be required by applicable Law or the Company’s outside auditor), surrender any right to a claim for refund of Taxes, or change any Tax reporting method, policy or procedure (except for any such change of method, policy or procedure as may be required by applicable Law or the Company’s outside auditor);
(xiv) change its fiscal year;
(xv) except as required by applicable Law or the terms of a Company Plan or as expressly provided in Section 5.14, (A) grant any current or former director, officer, employee or independent contractor any increase in cash compensation, bonus opportunity, tax gross up or other material benefits, or any optionssuch grant of any type of compensation or benefits to any current or former director, warrantsofficer, convertible securities employee or other rights independent contractor not previously receiving or entitled to receive such type of compensation or benefit, or pay any bonus of any kind or amount to acquire any shares current or former director, officer, employee or independent contractor, other than (1) changes in employee benefits made in the ordinary course of business consistent with past practice, (2) increases in base salary in connection with merit assessments, which increases and assessments are in the ordinary course of business consistent with past practice, provided that the aggregate amount of any such capital stockincreases for all employees in a department of the Company may not exceed 3% of the aggregate base salaries of all employees in such department, and (3) increases in base salary in connection with promotions, which increases and promotions are in the ordinary course of business consistent with past practice, (B) grant or pay to any current or former director, officer, employee or independent contractor any severance, change in control or termination pay, or tax gross up, or modifications thereto or increases therein, other than in the ordinary course of business consistent with past practice, (C) pay any benefit or grant or amend any award (including in respect of stock options, stock appreciation rights, performance units, restricted stock or other ownership interest stock-based or stock-related awards or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except with respect to non-equity based awards in the ordinary course of business consistent with past practice, (includingD) adopt or enter into any collective bargaining agreement or other labor union contract, without limitation(E) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Plan or other Contract or (F) adopt any new employee benefit plan or arrangement or amend, modify or terminate any phantom interest)existing Company Plan, except in the ordinary course of business consistent with past practice, in each case for the benefit of any current or former director, officer, employee or independent contractor, other than as required by applicable Law;
(xvi) knowingly fail to keep in force insurance policies or replacement or revised provisions regarding insurance coverage with respect to the assets, operations and activities of the Company and its Subsidiaries as currently in effect;
(xvii) renew or enter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, in any material respect, the operations of the Company or any of its subsidiaries Subsidiaries after the Effective Time;
(xviii) waive any material benefits of, or (ii) agree to modify in any assets of adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any standstill or similar agreement to which the Company or any of its subsidiariesSubsidiaries is a party;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iiixix) enter into any contract or agreement other than in accordance with the Plan new line of Liquidation; or business outside of its existing business;
(ivxx) enter into any new lease or amend the terms of any contract, agreement, commitment or arrangement with respect to any matter set forth existing lease of real property that would require payments over the remaining term of such lease in this Section 6.01(e) except as permitted by clauses (ii) and (iii)excess of $200,000 per year;
(fxxi) increase the compensation payable abandon or permit to its directors lapse any registered Company Registered IP or officers or hire disclose any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect material trade secret except pursuant to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationbinding confidentiality undertakings; or
(ixxii) announce an intentionauthorize any of, enter into or commit or agree to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Accuray Inc)
Conduct of Business by the Company. The Company agrees thatExcept as required by applicable law or regulation and except as otherwise contemplated by this Agreement, from until the date earlier of the termination of this Agreement until or the date that new directors are appointed to Closing Date, the Board pursuant to Section 3 Company shall, and shall cause each of Annex B heretoits subsidiaries to, except conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 4.1 of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by Purchaser, in writing, after the date that new directors are appointed to hereof and until the Board pursuant to Section 3 earlier of Annex B heretothe termination of this Agreement or the Closing Date, neither the Company nor shall not and shall not permit any of its subsidiaries shall, directly or indirectlyto:
(a) amend or otherwise change its Certificate of Incorporation or Byby-laws or equivalent organizational documentslaws;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, of (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stockshares, or any other ownership interest (includinginterest, without limitationthereof, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesassets, tangible or intangible;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockshares, except as permitted under Section 1.2(e);
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockshares;
(e) (i) acquire (including, without limitation, for cash or shares of stock, by mergerPurchase, consolidation, or acquisition of stock or assets or assets) any other business combination) interest in any corporation, partnership, partnership or other business organization or any division thereof, real or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any material amount of assets; other person, (ii) except for borrowings under existing credit facilitiesin the ordinary course of business, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)Company Material Contract;
(f) increase the compensation payable to its directors make any capital expenditure in excess of $50,000 or officers enter into any contract or hire any employeescommitment therefore;
(g) take amend, terminate or extend any action, Company Material Contract;
(h) delay or accelerate payment of any account payable or other than actions required by GAAP liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business, business consistent with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationpast practice; or
(i) announce an intentionagree, enter into any agreement in writing or otherwise make a commitmentotherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty contained in Article III untrue or incorrect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Incentra Solutions, Inc.)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until to the Effective Time, except as consented to in writing in advance by Assertio, as otherwise specifically required by this Agreement (including Section 6.16) or as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve intact its business organization, preserve its material assets, rights and properties in good repair and condition, preserve its goodwill and maintain satisfactory relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date that new directors are appointed of this Agreement to the Board pursuant to Section 3 of Annex B heretoEffective Time, except as set forth in Section 6.01 6.1(a) of the Company Disclosure Schedule Letter or as contemplated specifically required by this Agreement (including Section 6.16), the Company shall not, and shall not permit any of its Subsidiaries, without Assertio’s prior written consent (which (i) from and after June 30, 2020, shall not be unreasonably withheld, conditioned or delayed with respect to the matters in clauses (v), (vii), (viii), (ix) through (xix) and (xxi) or (ii) at any time, shall not be unreasonably withheld, conditioned or delayed with respect to the matters in clause (ix)(D)), to:
(i) (A) declare, set aside or pay any dividends on, or make any other provision distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned Subsidiary of the Company to its parent, (B) purchase, redeem or otherwise acquire shares of capital stock or other equity interests of the Company or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests or (C) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests (other than the issuance of shares of Company Common Stock upon the exercise of Company Options or Company Warrants, or settlement of Company Restricted Stock Units or Company Performance Stock Units in accordance with their terms as in effect on the date of this Agreement), except for acquisitions of Company Common Stock in satisfaction by holders of Company Options, Company Restricted Stock Units, or Company Performance Stock Units of the applicable exercise price and/or withholding Taxes;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock or other equity interests or any securities convertible into, or exchangeable for or exerciseable for any such shares or other equity interests, or any rights, warrants or options to acquire, any such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of the Company on a deferred basis or other rights linked to the value of shares of Company Common Stock, including pursuant to Contracts as in effect on the date hereof (other than the issuance of shares of Company Common Stock upon the exercise of Company Options or Company Warrants, or settlement of Company Restricted Stock Units or Company Performance Stock Units in accordance with their terms as in effect on the date of this Agreement);
(iii) amend or otherwise change, or authorize the amendment or change of, its certificate of incorporation or by-laws (or similar organizational documents) (whether by merger, consolidation or otherwise);
(iv) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the Company and its Subsidiaries, other than inventory acquired in the ordinary course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien (other than a Permitted Lien) or otherwise dispose in whole or in part of any of its material properties, assets or rights or any interest therein (including any Company Owned IP), except (i) sales of inventory in the ordinary course of business consistent with past practice and (ii) the granting of non-exclusive licenses of Intellectual Property in the ordinary course of business consistent with past practice, the Plan abandonment of Liquidation Intellectual Property in the exercise of the good faith business judgment of the Company and the Settlement Agreementexpiration of Intellectual Property in accordance with the applicable statutory term to the extent not extendable;
(vi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(vii) (A) incur, create, assume or otherwise become liable for, or repay or prepay, any Indebtedness, or amend, modify or refinance any Indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person, other than the businesses Company or any direct or indirect wholly owned Subsidiary of the Company; provided, however, that the Company and its Subsidiaries shall be permitted to incur Indebtedness from time to time up to an aggregate principal amount of $5,000,000 under the Company Credit Agreement that the Company Board determines, in its sole discretion, is necessary to avoid a material adverse impact on the business of the Company and its subsidiaries Subsidiaries;
(viii) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto that in the aggregate are in excess of $1,000,000;
(A) except as set forth in clause (D) below, pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Documents filed prior to the date hereof (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, (B) cancel any material Indebtedness owed to the Company or any of its Subsidiaries, (C) waive, release, grant or transfer any right of material value or (D) pay, discharge, settle or satisfy for money any claims, liabilities or obligations disclosed in the Company SEC Documents filed prior to the date hereof;
(A) materially modify, materially amend, terminate, cancel or extend any Material Contract or (B) other than in the ordinary course of business, consistent with past practice, enter into any Contract that if in effect on the date hereof would be a Material Contract;
(xi) except with respect to an Action to enforce its rights under this Agreement, commence any Action (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of money damages not in excess of $1,000,000 individually or $3,000,000 in the aggregate, in any case without the imposition of any equitable relief on, or the admission of wrongdoing by, the Company; provided, however, that this clause (xi) shall be conducted innot apply to any Action the defense of which is under the control of any insurer of the Company;
(xii) change its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or applicable Law, or revalue any of its material assets;
(xiii) settle or compromise any liability for Taxes; file any amended Tax Return or claim for Tax refund; make, revoke or modify any Tax election; file any Tax Return other than on a basis consistent with past practice; file any federal or state income tax return for any tax year ending during (or including any day during) the 2019 calendar year that does not contain an election out of the provisions of Section 382(l)(5) of the Code (or comparable provisions of state, local, or foreign law) with respect to any ownership change that occurred during such year for purposes of Section 382 of the Code; consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; grant any power of attorney with respect to Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, Tax holiday or any closing or other similar agreement; or change any method of accounting for Tax purposes;
(xiv) change its fiscal year;
(xv) except as required by the terms of any Company Plan as in effect immediately prior to the date of this Agreement, as required by applicable Law or as required to maintain the tax qualified status of any Company Plan, (A) grant any current or former director, officer, employee or independent contractor any increase in base salary or hourly wage rate, bonus opportunity or other material benefits (other than base salary (and corresponding annual bonus opportunity) increases made in the ordinary course of business consistent with past practice for employees whose annual base salary immediately prior to such increase does not exceed $50,000), or pay any bonus of any kind to any current or former director, officer, employee or consultant, (B) grant or pay to any current or former director, officer, employee or consultant any severance, change in control or termination pay, or make any modifications thereto or increases therein (other than as the automatic and non-discretionary result of a permitted base salary or annual bonus opportunity increase under the immediately preceding clause (A)), (C) grant or amend any award of stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards, or remove or modify any restrictions in any Company Equity Plan or awards made thereunder, (D) adopt or enter into any collective bargaining agreement or other labor union contract, (E) take any action to accelerate the vesting, funding or payment of any compensation or benefit under any Company Plan or other Contract or (F) adopt any new Company Plan or amend, modify or terminate any existing Company Plan, in each case for the benefit of any current or former director, officer, employee or consultant;
(xvi) (A) hire any employee at the executive level or higher or (B) other than in the ordinary course of business consistent with past practice, hire any other employee;
(xvii) terminate any employee of the Company or its Subsidiaries or otherwise request that any employee of the Company or its Subsidiaries resign, in each case other than for cause or poor performance (in accordance with the Company’s past practices);
(xviii) fail to keep in force material insurance policies or replacement or revise provisions in any material respect regarding insurance coverage with respect to the assets, operations and activities of the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except Subsidiaries as disclosed currently in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentseffect;
(bxix) issuerenew or enter into any non-compete, sellexclusivity, pledgenon-solicitation or similar agreement that would restrict or limit, dispose ofin any material respect, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock or other ownership interest operations of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesSubsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iiixx) enter into any contract or agreement other than in accordance with the Plan new line of Liquidation; or business outside of its existing business;
(ivxxi) enter into any new real property lease or materially amend the terms of any contract, agreement, commitment or arrangement with respect to any matter set forth existing lease of real property that would require payments over the remaining term of such lease in this Section 6.01(e) except as permitted by clauses (ii) and (iii)excess of $25,000;
(f) increase the compensation payable to its directors or officers or hire any employees;
(gxxii) take any action (or fail to take any action) in breach of this Agreement, other than actions required by GAAP with the actual knowledge that such action or failure to act would alone, or in the ordinary course conjunction with one or more other events, changes, circumstances, occurrences, effects of businessstate of facts, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationhave a Company Material Adverse Effect; or
(ixxiii) announce an intentionauthorize any of, enter into or commit or agree in writing to take, any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto6.2 hereof, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, in accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto6.2 hereof, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate Declaration of Incorporation Trust or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock beneficial interest or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of such capital stockbeneficial interest, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any material assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stocksecurities, property or otherwise, with respect to any of its capital stockCommon Shares', provided, however, that the Company may continue to make regularly scheduled dividend payments on its Preferred Shares;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) other than in the ordinary course of business, enter into any contract or agreement other than in accordance with the Plan of Liquidationas contemplated herein; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii6.1(e);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to change its accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(ih) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.. SECTION 6.2
Appears in 1 contract
Samples: Stock Purchase Agreement (First Union Real Estate Equity & Mortgage Investments)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement and continuing until the date that new directors are appointed to earlier of the Board termination of this Agreement pursuant to Section 3 of Annex B heretoits terms or the Effective Time, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any each of its subsidiaries shall, directly except to the extent that Parent shall otherwise consent in writing (which consent shall not be unreasonably conditioned, delayed or indirectlywithheld), carry on its business in the usual, regular and ordinary course in all material respects in substantially the same manner as heretofore conducted. In addition, without the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall not, and shall not permit its subsidiaries to, do any of the following:
(a) amend Cause, permit or otherwise change submit to a vote of the Company’s shareholders any amendments to the Company Charter Documents (or similar governing instruments of any of its Certificate subsidiaries), other than an amendment to the Company Charter Documents to effect a reverse stock split of Incorporation or By-laws or equivalent organizational documentsthe Company Common Stock approved by the Board and the Company’s shareholders prior to the date hereof;
(b) issueIssue, deliver, sell, pledge, dispose of, grant, authorize or designate (including by certificate of designation) or pledge or otherwise encumber, or authorize propose any of the issuance, sale, pledge, disposition, grant or encumbrance of, (i) foregoing with respect to any shares of any class of capital stock or other ownership interest of the Company or its subsidiaries or any securities convertible into shares of capital stock of the Company or its subsidiaries, or any optionssubscriptions, warrantsrights, convertible securities warrants or other rights of any kind options to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), stock of the Company or any of its subsidiaries or any securities convertible into shares of capital stock of the Company or its subsidiaries, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than (i) the issuance, delivery and/or sale of shares of Company Common Stock pursuant to the exercise of Company Stock Options or Company Warrants or (ii) any assets amendments to the terms of outstanding Company Stock Options consistent with the Company or any requirements of its subsidiariesSection 1.6(d);
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stocksecurities or property) in respect of any capital stock of the Company or its subsidiaries or split, property combine or otherwise, with respect reclassify any capital stock of the Company or its subsidiaries (other than inter-company dividends from the Company’s subsidiaries to any the Company or to effect a reverse stock split of its capital stockthe Company Common Stock approved by the Board and the Company’s shareholders prior to the date hereof;
(d) reclassifyPurchase, combine, split, subdivide or redeem, or purchase redeem or otherwise acquire, directly or indirectly, any shares of capital stock of the Company or its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets subsidiaries or any other business combination) any corporation, partnership, other business organization securities of the Company or its subsidiaries or any division thereofoptions, real property warrants, calls or rights to acquire any material amount such shares or other securities, except repurchases of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money unvested shares at or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest below cost in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance connection with the Plan termination of Liquidation; the employment relationship with any employee pursuant to stock option or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth purchase agreements in effect on the date of this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationAgreement; or
(ie) announce an intention, enter into any agreement Agree in writing or otherwise make a commitment, to do take any of the foregoingactions described in Section 4.1(a) through 4.1(d) above. Notwithstanding the foregoing restrictions or anything to the contrary in this Agreement, any action that is directly or indirectly initiated, permitted, voted for or consented to by either Guarantor (in their capacity as an employee, officer, director, manager, member, shareholder or partner of the Company or any subsidiary thereof) shall not be deemed to violate this Section 4.1, even if expressly prohibited hereby.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees thatExcept (i) as contemplated, from the date of required or permitted by this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoAgreement, except (ii) as required by applicable Law, (iii) as set forth in Section 6.01 Schedule 5.2 or (iv) as consented to by Parent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date hereof through the earlier of the Disclosure Schedule or as contemplated by any other provision Closing Date and the termination of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted inwill, and will cause each of its Subsidiaries to, use commercially reasonable efforts to (A) conduct its operations in the Company ordinary course of business consistent with past practice, (B) preserve intact its present business organization and its subsidiaries shall not take any action except inrelationships with third parties, including Clients and referral partners, and Purchaser shall not cause (C) keep available the Company services of its present officers and its subsidiaries employees. Subject to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan clauses (i) through (iv) of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any shall not, and shall cause each of its subsidiaries shall, directly or indirectlySubsidiaries not to:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsany Company Charter Document;
(b) other than upon the exercise of stock options outstanding as of the date hereof and listed on Schedule 3.2(c), issue, deliver, authorize, pledge, transfer, encumber, dispose of, sell or agree or commit to issue (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any class or any other equity securities or equity equivalents, including subscriptions, rights, warrants or options;
(c) split, subdivide, combine, reclassify, repurchase or redeem any of its capital stock or other equity interests or declare, set aside or pay any dividends or other distributions in respect of its capital stock or other equity interests (in cash, equity or otherwise) (except for (i) any dividend and/or other distribution from any Subsidiary of the Company to (x) any other Subsidiary of the Company or (y) the Company, or (ii) repurchases of equity from terminated employees, officers, or independent contractors pursuant to Employee Plans in effect on the date hereof, or (iii) in connection with the exercise or vesting of any equity or equity-based award);
(d) incur or assume any Indebtedness except for borrowings under any revolving credit facility as set forth on Schedule 3.14(a) (provided that, it is expressly agreed among the parties hereto that the Acquired Companies may, at any time and at their sole discretion, repay all or a portion of their outstanding Indebtedness);
(e) acquire (by merger, consolidation, purchase of stock or assets or otherwise) any assets, equity or portion of a business of another Person (other than assets acquired in the ordinary course of business);
(f) sell, pledge, transfer, assign or otherwise dispose ofof any of its assets having a replacement cost or fair market value in excess of $25,000, or grant any Lien (other than a Permitted Lien) on any of its assets (provided that, it is expressly agreed among the parties hereto that the Acquired Companies may, at any time and at their sole discretion, sell, transfer, dispose of or assign any Advisor Receivables);
(g) alter through merger, liquidation, reorganization, restructuring or in any other fashion the capital structure of the Company and its Subsidiaries;
(h) effect any change in any of its methods of accounting, except as may be required by GAAP or applicable Law;
(i) commence, settle or compromise any Proceeding (i) for more than $25,000 individually or $50,000 in the aggregate or (ii) that would reasonably be expected to impose material nonmonetary obligations on any Acquired Company;
(j) (i) make, change or rescind any election relating to Taxes (including any election for any joint venture, partnership, limited liability company or other investment where the Company or any Subsidiary has the authority to make such binding election in its discretion), (ii) amend any Tax Return, (iii) settle, compromise or resolve any Tax Proceeding in respect of an amount of Taxes to the Company and its Subsidiaries, taken as a whole, or (iv) change any method of Tax accounting from those employed in the preparation of its Tax Returns that have been filed for prior taxable years;
(k) hire any employee or enter into any employment contract, other than the hiring of an employee to fill a vacancy that arises after the date hereof so long as his or her annual cash compensation is not in excess of $100,000 and his or her employment can be terminated “at will”;
(l) make any loans, advances or capital contributions to, or investments in, any other Person (other than advances of expenses or loans to employees and other service providers in the ordinary course of business, it being understood that all such loans shall be repaid prior to Closing);
(m) establish or adopt any new plan, policy, program or arrangement that if in effect on the date hereof would have been an Employee Plan or amend or terminate (other than as required by Law or to maintain the Tax-qualified status of any Employee Plan) any Employee Plan in effect on the date hereof (or any plan, policy, program, or arrangement that would have been an Employee Plan had such plan, policy, program, or arrangement existed on the date hereof);
(n) (i) increase any compensation or benefits for any officer, director, employee or consultant (who is a natural person), other than such increases in compensation that are required by any existing Contract as of the date hereof, (ii) adopt, announce, grant, encumbermodify or terminate any severance, retention, change in control, bonus or termination pay or any similar payments, other than as required by any existing Contract as of the date hereof or (iii) take any action to cause to accelerate the payment, funding, right to payment or vesting of any compensation or benefits for any employee, officer, director or consultant (who is a natural person) of any Acquired Company (except as required by this Agreement);
(A) terminate, modify or waive any right under any Material Contract except for immaterial amendments or renewals in the ordinary course of business, or authorize enter into any Contract that is (or would be) a Material Contract if entered into prior to the issuancedate of this Agreement, saleexcept in the ordinary course of business or (B) terminate, pledgerenew or modify any Material Lease, dispositionor enter into any lease that is (or would be) a Material Lease if entered into prior to the date of this Agreement;
(p) make any change in the policies with respect to cash management practices, grant including the payment of accounts payable or encumbrance of, (i) any shares accrued expenses or the collection of any class of capital stock accounts receivable or other ownership interest receivables, or otherwise make any change with respect to the management of working capital;
(q) adopt or enter into a plan of complete or partial liquidation or authorize or undertake any dissolution, restructuring or recapitalization of the Company or any of its subsidiaries, Subsidiaries or any options, warrants, convertible securities merge or other rights of any kind to acquire any shares of such capital stock, or consolidate into any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesPerson;
(cr) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iiiA) enter into any contract new line of business or agreement other than in accordance with the Plan of Liquidation; introduce any new products or material services, or (ivB) materially change its business lines, products or services used in connection with its business, in each case, in effect on the date hereof, except to the extent required after the date hereof by any change in Law or GAAP, as applicable, or otherwise enter into any joint venture or amend similar relationship;
(s) make any contract, agreement, capital expenditures or commitment thereof in excess of $50,000 in the aggregate or arrangement with respect fail to make any matter capital expenditures set forth in this Section 6.01(e) except the Company’s capital expenditure budget as permitted by clauses (ii) in existence on the date hereof and (iii);
(f) increase the compensation payable made available to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationParent; or
(it) announce an intentionauthorize, enter into any agreement agree or otherwise make a commitment, commit to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth consented to in Section 6.01 of the Disclosure Schedule or writing by Rexam, (ii) as specifically contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses Agreement or (iii) as disclosed on Schedule 4.01 of the Company Disclosure Schedule (with specific reference to the Subsection of this Section 4.01 to which the information stated in such disclosure relates and such other Subsections of this Section 4.01 to the extent a matter is disclosed in such a way as to make its relevance to the information called for by such other Subsection readily apparent), the Company shall, and shall cause its subsidiaries shall be conducted into, carry on their respective businesses in the ordinary course consistent with past practice and use their commercially reasonable efforts to comply with all applicable laws, rules and regulations and, to the Company extent consistent therewith, use their commercially reasonable efforts to preserve their assets and its subsidiaries shall not take any action except intechnology and preserve their relationships with customers, suppliers, licensors, licensees, distributors and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance others having business dealings with this Agreement, the Settlement Agreement and the Plan of Liquidationthem in all material respects. Without limiting the preceding sentence, except as disclosed in Section 6.01 generality of the Disclosure Scheduleforegoing, prior but subject to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoclauses (i), neither (ii) and (iii) above, the Company nor shall not, and shall not permit any of its subsidiaries shall, directly or indirectlyto:
(ai) amend (w) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock except for cash dividends by a direct or indirect wholly owned subsidiary of the Company organized under the laws of any jurisdiction other than any European subsidiary of the Company to its parent, (x) purchase, redeem or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) acquire any shares of any class of capital stock or any other ownership securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, (y) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities or (z) liquidate or merge with any subsidiaries of the Company;
(ii) issue, deliver, sell, pledge or otherwise transfer or encumber any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such shares, voting securities or convertible securities or any stock appreciation rights or other rights that are linked to the price of Company Common Stock (other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options that are in existence on the date of this Agreement);
(iii) amend its certificate of incorporation or by-laws (or similar organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by any other manner, any assets constituting a business or any corporation, partnership, joint venture or association or other entity or division thereof, or any direct or indirect interest in any of the foregoing, or (B) any assets other than purchases of assets in the ordinary course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets or any interest therein, except sales of (i) inventory and obsolete assets in the ordinary course of business consistent with past practice and (ii) immaterial assets in the ordinary course of business consistent with past practice;
(vi) (x) repurchase, accelerate, prepay or incur any indebtedness or guarantee any indebtedness of another person or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its subsidiaries, or guarantee any optionsdebt securities of another person, warrants, convertible securities enter into any "keep well" or other rights agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any kind to acquire any shares of such capital stockthe foregoing, or any other ownership interest except for (includingA) short-term borrowings incurred in the ordinary course of business consistent with past practice, without limitation, any phantom interest), (B) borrowings under existing credit facilities of the Company or any of its subsidiaries up to the existing borrowing limit on the date hereof or (iiC) any assets acceleration of the indebtedness of the Company and its subsidiaries occurring as a result of the consummation of the Offer, the Merger or the other transactions contemplated hereby or by the Stockholders Agreement (PROVIDED, HOWEVER, that with respect to this Section 4.01(a)(vi)(x), such borrowings at any month end shall not exceed by more than $50,000,000 in the aggregate the maximum amount for any month end set forth in the Company's current 2000 budget, a true and complete copy of which has been made available to Rexam prior to the date of this Agreement, which maximum amount is hereby represented and warranted by the Company to be no more than $1.2 billion), (y) make any loans, advances or capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned subsidiary of the Company, other than in the ordinary course of business consistent with past practice and not materially greater than the amounts, if any, set forth in the Company's current 2000 budget or (z) enter into any hedging agreement or other financial agreement or arrangement designed to protect the company against fluctuations in commodities prices or current exchange rates, except agreements or arrangements in respect of contractual commitments of the Company entered into in the ordinary course of business consistent with past practice;
(vii) incur or commit to incur any capital expenditures, whether by acquisition or internal investment, or any obligations or liabilities in connection therewith, in excess of $3,000,000 individually or $6,000,000 in the aggregate above expenditures that are consistent (as to amount) and not materially inconsistent (as to timing) with the Company's current capital budget for 2000, a true and complete copy of which has been made available to Rexam prior to the date of this Agreement;
(viii) pay, discharge, settle or satisfy any claims (including claims of stockholders), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), in excess of $5,000,000 in the aggregate other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected, reserved against or otherwise disclosed in the most recent audited financial statements (or the notes thereto) of the Company included in the Filed SEC Documents (for amounts not in excess of such reserves or as otherwise disclosed) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or waive, release, grant or transfer any right of material value, other than in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify in any adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(A) grant to any employee, officer, director, consultant or independent contractor of the Company or any of its subsidiaries;
(c) except subsidiaries any increase in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make cash compensation or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnershipbonus, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except than in the ordinary course of business; business consistent with past practice to persons that are not directors or Primary Company Executives, (iiiB) grant to any employee, officer, director, consultant or independent contractor of the Company or any of its subsidiaries any increase in severance or termination pay, (C) establish, adopt, enter into or amend any contract Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement (except that the collective bargaining agreements covering the Oklahoma City, Valparaiso or Whitehouse plants may be adopted after prior notification to Rexam) or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement, other than pursuant to the provisions of Section 5.04 hereof, including any payment of cash pursuant thereto or (F) amend or modify or grant any Company Stock Option, in each case above other than (i) changes that are required by applicable law or (ii) to satisfy obligations existing as of the date hereof;
(x) fail to maintain existing insurance at levels substantially comparable to current levels;
(xi) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Intellectual Property Rights of the Company and its subsidiaries other than in accordance the ordinary course of business consistent with past practices; PROVIDED that in no event shall the Plan Company license on an exclusive basis or sell any Intellectual Property Rights of Liquidation; the Company or its subsidiaries;
(ivxii) enter into or amend any contractagreements pursuant to which any person is granted exclusive marketing, agreement, commitment manufacturing or arrangement other rights with respect to any matter material Company product, process or technology;
(xiii) except insofar as may be required by a change in GAAP or generally accepted accounting principles of the applicable jurisdiction or changes in applicable law, make any changes in accounting methods, principles or practices;
(xiv) take any action that would reasonably be expected to result in (A) any representation and warranty of the Company set forth in this Section 6.01(eAgreement that is qualified as to materiality becoming untrue, (B) except as permitted by clauses any such representation and warranty that is not so qualified becoming untrue in any material respect or (iiC) and (iii)any condition to the Offer or the Merger not being satisfied;
(fxv) increase the compensation payable to its directors transfer, encumber or officers redeem any shares of capital stock of Nacanco Holding Europe or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of LiquidationNacanco Holding France; or
(ixvi) announce an intentionauthorize any of, enter into or commit, resolve or agree to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rexam Acquisition Subsidiary Inc)
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except Except (i) as set forth in Section 6.01 of the Company Disclosure Schedule Letter; (ii) as expressly required by this Agreement; (iii) as required by applicable Law; or as contemplated by any other provision (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) from the date of this AgreementAgreement to the Effective Time, (A) the Plan of Liquidation Company shall, and shall cause each Company Subsidiary to, (x) conduct the Settlement Agreement, the businesses business of the Company and each Company Subsidiary in the ordinary course of business consistent with past practice and (y) use commercially reasonable efforts to ensure that it preserves intact in all material respects its subsidiaries shall be conducted incurrent business organization, assets and technology, keeps available the services of the Company Employees in all material respects and maintains its relations and goodwill with material customers, suppliers, landlords, and other Persons having material business relationships with the Company in all material respects and its subsidiaries (B) the Company shall not, and shall not take permit any action except inCompany Subsidiary to, and Purchaser shall not cause the Company and its subsidiaries to take do any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing:
(a) amend (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities, other than as permitted by Section 6.01(b); or (iii) repurchase, redeem or otherwise change its Certificate acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of Incorporation the Company or By-laws any Company Subsidiary convertible into or equivalent organizational documentsexchangeable or exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any such capital stock, securities or interests, except for acquisitions, or deemed acquisitions, of Company Common Stock or other equity securities of the Company in connection with (A) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”), (B) required tax withholding in connection with the exercise, vesting and settlement of Company Stock Awards and other awards pursuant to the Company Stock Plans, (C) forfeitures of Company Stock Awards, (D) conversion or repurchase of the Convertible Notes pursuant to the Indenture or (E) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(b) issue, deliver, sell, pledge, dispose of, grant, encumber, pledge or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, otherwise subject to any Lien (other than Liens imposed by applicable securities Laws): (i) any shares of any class of capital stock or other ownership interest equity interests or voting securities of the Company or any Company Subsidiary other than (A) the issuance of Company Common Stock (x) upon the due exercise, vesting or settlement of Company Stock Awards issued pursuant to the Company Stock Plans, in each case outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect at such time, (y) prior the Final Offering, pursuant to the Company ESPP or (z) upon the conversion of the Convertible Notes pursuant to the Indenture, or (B) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iii) any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iv) any Company Stock Awards or other rights issued by the Company or any Company Subsidiary that are linked in any way to the price of any class of Company Capital Stock or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Company Subsidiary; or (v) any Company Voting Debt;
(c) (i) amend the Company Charter or the Company Bylaws; (ii) amend the charter or organizational documents of any Company Subsidiary, or (iii) amend any term of any securities in the Company or any of its subsidiariesSubsidiaries, or any optionsexcept, warrants, convertible securities or other rights in the case of any kind to acquire any shares each of such capital stock, or any other ownership interest the foregoing clauses (including, without limitation, any phantom interesti) and (ii), as may be required by Law or the rules and regulations of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockNASDAQ;
(d) reclassifycreate any Company Subsidiary;
(e) make or adopt any material change in its accounting methods, combineprinciples or practices, splitexcept as may be required by a change in GAAP or Law;
(f) directly or indirectly acquire, subdivide dispose of, sell, assign or redeemabandon or agree to acquire, dispose of, sell, assign or abandon in any transaction any equity interest in or business or material assets of any Person or division thereof, except acquisitions or dispositions with respect to transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(g) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise subject to any Lien (other than Permitted Liens), or purchase otherwise dispose of any material properties or otherwise acquireassets or any material interests therein other than: (i) pursuant to Contracts in existence on the date of this Agreement; or (ii) with respect to transactions between the Company, directly on the one hand, and any wholly owned Company Subsidiary, on the other hand, or indirectlybetween wholly owned Company Subsidiaries;
(h) incur any Indebtedness, any except for (i) the incurrence of its capital stockIndebtedness not to exceed $2,000,000 in the aggregate; (ii) Indebtedness in replacement of existing Indebtedness, in the same or a lesser principal amount and on terms that are no less favorable to the Company in the aggregate than the Company’s existing indebtedness; (iii) Indebtedness solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; or (iii) the incurrence of Indebtedness pursuant to the Credit Agreement as in effect on the date hereof in the ordinary course of business consistent with past practice;
(i) acquire except as required by the express terms of any Company Benefit Plan or Collective Agreement, in each case as in effect on the date hereof, (includingi) establish, without limitationadopt, by mergeramend or terminate any Company Benefit Plan or create or enter into any plan, consolidationagreement, program, policy, trust, fund or acquisition other arrangement that would be a Company Benefit Plan if it were in existence as of stock or assets or any other business combination) any corporation, partnershipthe date of this Agreement, other business organization than any such amendments to existing Company Benefit Plans that do not materially increase the annual cost to the Company of maintaining such Company Benefit Plan; provided that no such amendment shall include or increase any division thereof, real property severance or any material amount of assetsequity payments; or (ii) except for borrowings under existing credit facilitiesincrease in any manner the compensation (including severance, 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 change in control and retention compensation) of any personcurrent or former employees of the Company or its Subsidiaries, or make any loans or advancesother than base salary increases for employees other than executive officers in connection with the Company’s merit review process, or grant any security interest in any of its assets except provided that such merit review process is done in the ordinary course of business; business and at a time and manner consistent with the Company’s past practices, and the aggregate amount of the increases does not exceed 3.5%, (iii) enter into pay or award, or commit to pay or award, any contract bonuses or agreement other than in accordance with the Plan of Liquidation; incentive compensation (whether cash, equity or equity-based), including any transaction-related bonuses or (iv) enter into accelerate the time of vesting or amend payment of any contract, agreement, commitment award under any Company Benefit Plan or otherwise;
(j) (i) hire any employee or engage any individual contractor other than hiring or engaging such individuals in the ordinary course of business consistent with the Company’s past practice for positions or services below the level of Vice President and/or whose targeted annual base salary or fee arrangement with respect to is less than $200,000; or (ii) terminate the employment of any matter set forth in this Section 6.01(esuch employee other than for cause;
(k) except as permitted by clauses (iiSection 3.03(b) or Section 7.06, settle or compromise any material litigation, or release, dismiss or otherwise dispose of any claim, liability, obligation or arbitration, other than settlements or compromises of litigation or releases, dismissals or dispositions of claims, liabilities, obligations or arbitrations that involve the payment of monetary damages in an amount not in excess of $2,000,000 in the aggregate by the Company or any Company Subsidiary and (iii)do not involve any injunctive or other non-monetary relief or impose restrictions on the business or operations of the Company and the Company Subsidiaries, taken as whole;
(fl) increase encumber, convey title (in whole or in part), license or make a similar grant under any material Intellectual Property Rights owned by or exclusively licensed to the compensation payable Company or any Company Subsidiary, other than non-exclusive licenses to its directors or officers or hire any employeescustomers in the ordinary course of business consistent with past practice;
(gm) intentionally take any action or fail to take any action, if such action or failure to take such action would reasonably be likely to result in the loss, lapse, abandonment, invalidity or unenforceability of any Company Intellectual Property, except for Company Intellectual Property which, in the reasonable judgment of the Company or a Company Subsidiary is determined to not be material to its business, consistent with past practice;
(n) other than actions as required by applicable Law or GAAP or in the ordinary course of business, make, change or revoke any material election with respect to Taxes or any election pursuant to Section 7701 of the Code and the Treasury Regulations thereunder, file any material amended Tax Return, change any material accounting policies method for Taxes, settle or procedures;
(h) terminatecompromise any material Tax liability, repeal, amend enter into any closing agreement with respect to any material Tax or otherwise change, or take surrender any action inconsistent with the terms of, the Plan of Liquidationright to claim a material Tax refund; or
(io) announce an intentionincur any capital expenditures in excess of the Company’s existing budget for capital expenditures as approved by the Company Board and made available to Parent;
(p) materially amend, modify, renew or terminate any Real Estate Lease or enter into any new material lease, sublease, license or other agreement for the use or otherwise occupancy of any real property;
(q) enter into a new line of business or abandon or discontinue any existing line of business;
(r) enter into, amend, accelerate, cancel, fail to exercise an expiring renewal option, grant a material waiver under or modify in any material respect, terminate or transfer to any Person other than a Company Subsidiary any Material Contract or any contract that would constitute a Material Contract if in effect as of the date of this Agreement, in each case, other than in the ordinary course of business consistent with past practice;
(s) except as provided under this Agreement, adopt a plan of agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or file a petition in bankruptcy under any provisions of applicable bankruptcy law on its behalf, or consent to the filing of any bankruptcy petition against it under any similar applicable Law;
(t) make or forgive any loan to any other Person (other than (A) the advancement of expenses to its employees in connection with the performance of their duties in the ordinary course of business consistent with past practice or (B) to any wholly-owned Subsidiary in the ordinary course of business consistent with part practice);
(u) enter into a commitmenttransaction with any stockholder, director or executive officer of the Company that would be required to do be reported by the Company pursuant to Item 404 of Regulation S-K; or
(v) enter into any binding commitment to take any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Open Text Corp)
Conduct of Business by the Company. The Except (i) as set forth in the Company agrees thatDisclosure Letter; (ii) as expressly permitted or required by this Agreement; (iii) as required by applicable Law; or (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) from the date of this Agreement until the date that new directors are appointed to the Board pursuant Effective Time, (A) the Company shall, and shall cause each Company Subsidiary to Section 3 of Annex B hereto, except as set forth in Section 6.01 of (x) conduct the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses business of the Company and its subsidiaries shall be conducted ineach Company Subsidiary in the ordinary course of business consistent with past practice, and (y) use commercially reasonable efforts to ensure that it preserves intact its current business organization, keeps available the services of its current officers and employees and maintains its relations and goodwill with material customers, suppliers, landlords, and other Persons having material business relationships with the Company and its subsidiaries (B) the Company shall not, and shall not take permit any action except inCompany Subsidiary to, and Purchaser shall not cause the Company and its subsidiaries to take do any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectlyfollowing:
(a) amend (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities, other than as permitted by Section 5.01(b); or (iii) accelerate or otherwise change its Certificate modify the vesting terms of Incorporation any Company RSUs or By-laws (iv) repurchase, redeem or equivalent organizational documentsotherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any such capital stock, securities or interests, except for acquisitions, or deemed acquisitions, of Company Common Stock or other equity securities of the Company in connection with (A) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”), (B) required tax withholding in connection with the exercise, vesting and settlement of Company Stock Awards and other awards pursuant to the Company Stock Plans, (C) forfeitures of Company Stock Awards or (D) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(b) issue, deliver, sell, pledge, dispose of, grant, encumber, pledge or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, otherwise subject to any Lien (other than Liens imposed by applicable securities Laws): (i) any shares of any class of capital stock or other ownership equity interests or voting securities of the Company or any Company Subsidiary other than (A) the issuance of Company Common Stock upon the exercise, vesting or settlement of Company Stock Awards or other awards pursuant to the Company Stock Plans, in each case outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect at such time or (B) transactions solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (ii) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iii) any warrants, calls, options, phantom stock, stock appreciation rights or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary; (iv) any rights issued by the Company or any Company Subsidiary that are linked in any way to the price of any class of Company Capital Stock or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Company Subsidiary; or (v) any Company Voting Debt;
(c) (i) amend the Company Charter or the Company Bylaws; or (ii) amend the charter or organizational documents of any Company Subsidiary, except, in the case of each of the foregoing clauses (i) and (ii), as may be required by Law or the rules and regulations of NASDAQ;
(d) make or adopt any material change in its accounting methods, principles or practices, except as may be required by a change in GAAP or Law;
(e) directly or indirectly acquire, dispose of, sell, assign or abandon or agree to acquire, dispose of, sell, assign or abandon in any transaction any equity interest in or business or material assets of any Person or division thereof, except (i) acquisitions or dispositions with respect to transactions solely between or among the Company and wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries, or (ii) the sale of products of the Company and the Company Subsidiaries or grants of non-exclusive licenses to Intellectual Property Rights in the ordinary course of business consistent with past practice;
(f) except in relation to Liens to secure Indebtedness for borrowed money permitted to be incurred under Section 5.01(g), sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise subject to any Lien (other than Permitted Liens), or otherwise dispose of any material properties or assets or any material interests therein other than: (i) in the ordinary course of business consistent with past practice; (ii) pursuant to Contracts in existence on the date of this Agreement that have been disclosed or made available to Parent; or (iii) with respect to transactions between the Company, on the one hand, and any wholly owned Company Subsidiary, on the other hand, or between wholly owned Company Subsidiaries;
(g) incur any Indebtedness (other than any Indebtedness described in clause (iv) of the definition of Indebtedness incurred in the ordinary course of business) or guarantee any Indebtedness of any other Person, except for (i) Indebtedness not in excess of $3,000,000 in the aggregate, (ii) Indebtedness in replacement, and in the same or a lesser principal amount, of existing Indebtedness or (iii) Indebtedness solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(h) implement any “plant closing” or “mass layoff” as such terms are defined in the WARN Act;
(i) except as permitted by Section 2.03(a) or Section 6.05, settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim, liability, obligation or arbitration, other than settlements or compromises of litigation or releases, dismissals or dispositions of claims, liabilities, obligations or arbitrations that involve the payment of monetary damages in an amount not in excess of $1,000,000 individually, and, in any event, $5,000,000 in the aggregate, by the Company or any Company Subsidiary and do not involve any injunctive or other material non-monetary relief or impose material restrictions on the business or operations of the Company and the Company Subsidiaries, taken as whole;
(j) abandon, permit to lapse, encumber, convey title (in whole or in part), exclusively license or grant any material right or other license to any material Intellectual Property Rights owned by or exclusively licensed to the Company or any Company Subsidiary, other than licenses granted in the ordinary course of business consistent with past practice;
(k) make, change or revoke any material election with respect to Taxes, file any amended material Tax Return, settle or compromise any material Tax liability, consent to or request any extension or waiver of any limitation period with respect to any material claim or assessment for Taxes, incur any material Tax liability outside of the ordinary course of business (other than as a result of the transactions contemplated by this Agreement), prepare or file any Tax Return in a manner inconsistent in any material respect with past practice, enter into any closing agreement with respect to any material Tax, surrender any right to claim a material Tax refund or fail to pay any material Taxes as they become due and payable (including estimated Taxes);
(l) materially amend, modify, extend, renew or terminate any Real Estate Lease or enter into any new material lease, sublease, license or other agreement for the use or occupancy of any real property;
(m) except as required by applicable Law or GAAP, revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable, in any case other than in the ordinary course of business consistent with past practice;
(n) (A) hire any employee that would be entitled to receive annual base cash compensation of $200,000 or more, (B) except to the extent required by applicable Law or by written agreements existing on the date of this Agreement that have been disclosed or made available to Parent, pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not required by any existing Company Benefit Plan or other agreement or arrangement in effect on the date of this Agreement to any employee, officer, director, stockholder or other service provider of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Subsidiaries, whether past or any of its subsidiaries or present, (ii) any assets of the Company or any of its subsidiaries;
(cC) except in accordance with the Plan of Liquidation and solely to the extent necessary for required by applicable Law or by written agreements existing on the Company date of this Agreement that have been disclosed or made available to qualify as a REITParent, declare, set aside, make enter into or pay amend any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any Contracts of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets employment or any other business combination) any corporationconsulting, partnershipbonus, other business organization severance, retention, retirement or any division thereofsimilar agreement, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness agreements 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, or make any loans or advances, or grant any security interest in any of its assets except newly hired employees in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance business consistent with the Plan of Liquidation; past practice with an annual base salary and incentive compensation opportunity not to exceed $200,000, or (ivD) except as required to ensure that any Company Benefit Plan is not then out of compliance with applicable Law, enter into or adopt any new, or materially increase benefits under or renew, amend or terminate any contract, existing Company Benefit Plan or benefit arrangement or any collective bargaining agreement, commitment or arrangement with respect ;
(o) lend money to any matter set forth Person (other than advances to Company employees in this Section 6.01(e) except as permitted by clauses (ii) and (iiithe ordinary course of business consistent with past practices);
(fp) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, amend or terminate (other than expiration in accordance with respect to accounting policies its terms), or procedureswaive any material right, remedy or default under any Material Contract;
(hq) terminateenter into any Contract that would be material to the Company and the Company Subsidiaries, repeal, amend taken as a whole that would explicitly impose any material restriction on the right or otherwise change, ability of the Company or take any action inconsistent Company Subsidiary: (i) to compete with any other Person; (ii) to acquire any product or other asset or any services from any other Person; (iii) to perform services for or sell products to any other Person; (iv) to transact business with any other Person; or (v) to operate at any location in the terms of, the Plan of Liquidationworld; or
(ir) announce an intention, enter into any agreement or otherwise make a commitment, binding commitment to do take any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees thatExcept as required by applicable law or regulation and except as otherwise contemplated by this Agreement, from until the date earlier of the termination of this Agreement until or the date that new directors are appointed to Effective Time, the Board pursuant to Section 3 Company shall, and cause each of Annex B heretoits subsidiaries to, except conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 5.1 of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by Parent, in writing, after the date that new directors are appointed to hereof and until the Board pursuant to Section 3 earlier of Annex B heretothe termination of this Agreement or the Effective Time, neither the Company nor shall not and shall not permit any of its subsidiaries shall, directly or indirectlyto:
(a) amend or otherwise change its Certificate articles of Incorporation incorporation or Byby-laws or equivalent organizational documentslaws;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant grant, or encumbrance of, of (i) any shares of any class of its capital stock or other ownership interest of the Company or any of its subsidiariesclass, or any options, warrants, convertible securities securities, or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (includinginterest, without limitationthereof, any phantom interest), other than exercises of Company warrants or Company Stock Options by the Company or any of its subsidiaries holders thereof in accordance with their terms or (ii) any assets of the Company or any of its subsidiariesassets, tangible or intangible;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make make, or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide subdivide, or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets or assets) any other business combination) interest in any corporation, partnership, or other business organization or division thereof or any division thereofassets, real or make any investment either by purchase of stock or securities, contributions of capital, or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any material amount of assets; other person, (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)Company Material Contract;
(f) increase the compensation payable to its directors make any capital expenditure in excess of Fifty Thousand Dollars ($50,000) or officers enter into any contract or hire any employeescommitment therefore;
(g) take amend, terminate, or extend any action, Company Material Contract;
(h) delay or accelerate payment of any account payable or other than actions required by GAAP liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business, business consistent with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationpast practice; or
(i) announce an intentionagree, enter into any agreement in writing or otherwise make a commitmentotherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty contained in Article III untrue or incorrect.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing Date, neither the Company nor any of its subsidiaries shall, except as specifically contemplated in this Agreement, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsOrganizational Documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of share capital stock or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any material assets of the Company or any of its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stocksecurities, property or otherwise, with respect to any of its capital stockCommon Shares;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) other than in the ordinary course of business, enter into any contract or agreement other than in accordance with the Plan of Liquidationas contemplated herein; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii6.1(e);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to change its accounting policies or procedures;procedures;or
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(ig) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company. The Company covenants and agrees that, during the period from the date of this Agreement until the earlier of the Effective Time or the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretothis Agreement is terminated by its terms, unless Parent shall otherwise agree in writing, and except (i) as set forth in Section 6.01 of the Disclosure Schedule otherwise expressly permitted or as specifically contemplated by any other provision of this Agreement, including the Plan Holdco Election, (ii) as otherwise required by applicable Law, and (iii) as otherwise disclosed in the Disclosure Letter of Liquidation and the Settlement Agreement, Company:
(a) the businesses business of the Company and its subsidiaries shall be conducted only in, and the Company and its subsidiaries shall not take any action except in a prudent manner in, the ordinary course of business and Purchaser consistent with past practice. The Company shall not cause the Company use commercially reasonable efforts to maintain and preserve its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement business organization and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shall, directly or indirectly:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documentsgoodwill and assets;
(b) the Company shall not directly or indirectly do or permit to occur any of the following:
(i) amend its Charter Documents,
(ii) declare, pay or set aside for payment any dividend or distribution of any kind (whether in cash, securities, property or otherwise) in respect of Common Shares or other securities owned by any Person,
(iii) issue, sell, pledge, dispose ofof or in any way encumber or agree to issue, grant, encumber, or authorize the issuance, salesell, pledge, disposition, grant dispose of or encumbrance of, (i) encumber any shares of any class of capital stock Common Shares or other ownership interest securities of the Company Company, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire Common Shares, other than the Common Shares issuable on the exercise of options outstanding as of the date hereof,
(iv) redeem, purchase or otherwise acquire any of its subsidiaries, or any options, warrants, convertible securities outstanding Common Shares or other rights of any kind to acquire any shares of such capital stocksecurities,
(v) split, combine or any other ownership interest (including, without limitation, any phantom interest), of the Company or reclassify any of its subsidiaries Common Shares,
(vi) adopt a plan of liquidation or (ii) any assets resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of the Company, or
(vii) reorganize, amalgamate or merge the Company or with any of its subsidiariesother Person;
(c) except in accordance with without limiting the Plan generality of Liquidation and solely to the extent necessary for Section 5.1(a), the Company to qualify as a REIT, declare, set aside, make shall not directly or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to indirectly do any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;the following:
(i) acquire (includingsell, without limitationpledge, by mergerlicense, consolidationlease, dispose of or acquisition encumber any assets, except in the ordinary course of stock or assets or any other business combination) any corporationconsistent with past practice, partnership, other business organization or any division thereofincluding for greater certainty, real property or any material amount of assets; right thereto;
(ii) acquire (by merger, amalgamation, consolidation, acquisition of shares or assets or otherwise) another Person or division thereof or make any investment either by purchase of shares or securities, contribution of capital, property transfer or purchase of any property or assets of any other Person or division thereof, except for borrowings under existing credit facilities, purchases or expenditures in the ordinary course of business consistent with past practice;
(iii) incur or commit to any indebtedness for borrowed money or any other liability or obligation, or issue any debt securities or assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any personother Person if, after giving effect thereto, the Net Debt as at the Effective Time would exceed the amount referenced in Section 4.25 or the outstanding balance of the Company’s credit facility with the Bank of Nova Scotia would exceed $500,000;
(iv) make any loans or advancesadvances (other than non-material advances to Employees or Consultants for travel expenses or the like);
(v) expend or commit to expend any amounts with respect to capital expenditures that, when added to other such capital expenditures since July 31, 2007, is in excess of $250,000, with any additional capital expenditures exceeding $50,000 being mutually agreed upon by the Parties;
(vi) incur transaction expenses in connection with the transactions contemplated by this Agreement, including any fees, costs and expenses incurred to enter into this Agreement, exceeding $2.5 million;
(vii) discharge or grant satisfy any security interest in any of its assets except claims, liabilities or obligations other than the payment, discharge or satisfaction in the ordinary course of business; business and consistent with past practice of liabilities reflected or reserved against in the Financial Statements or of liabilities incurred since July 31, 2007 in the ordinary course of business consistent with past practice or incurred in connection with the transactions contemplated by this Agreement;
(iiiviii) enter into any contract Material Contract or agreement other than Collective Agreement or waive, release, grant or transfer any rights of value or modify or change in accordance with the Plan of Liquidation; or any respect any existing Material Contract;
(ivix) make any material changes to existing accounting principles and practices, except as required by GAAP;
(x) enter into any Contract other than on an arm’s length basis; or
(xi) enter into any agreement to do any of the foregoing prohibited matters;
(d) the Company shall use its commercially reasonable efforts to cause the current insurance policies of the Company or amend replacements therefor not to be cancelled or terminated or any contractof the coverage thereunder to lapse, agreementunless simultaneously with such termination, commitment cancellation or arrangement lapse, replacement policies providing coverage similar to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) the Company shall continue to manage its Working Capital in a prudent manner in the ordinary course of business consistent with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii)past practice;
(f) the Company shall not create any new Officer Obligations, other than those disclosed in the Disclosure Letter of the Company and referenced in Section 4.15, and the Company shall not grant to any Consultant, officer, director or Employee an increase in compensation in any form, make any loan to any Consultant, officer, director or Employee, or take any action with respect to the compensation grant of any severance or termination pay arising from the Arrangement or a change of control of the Company or enter into any employment agreement with any officer, director or Employee, or consulting agreement with a Consultant, or enter into any other agreement with respect to any increase of benefits payable under its current severance or termination pay or any other policies or to its directors or officers or hire any employeesgive effect to practices regarding non-executive employee wages and benefits other than in the normal course consistent with past practice;
(g) take the Company shall not adopt or amend or make any actioncontribution to any bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, other than actions required by GAAP compensation or in other similar plan, agreement, trust, or arrangements for the ordinary course benefit of business, Employees or Consultants or with respect to accounting policies or proceduresits obligations under existing provisions of any of the Company Plans;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; orThe Company shall:
(i) announce an intentionduly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects;
(ii) timely withhold, collect, remit and pay all Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable;
(iii) not make or rescind any election relating to Taxes;
(iv) not enter into any agreement with any taxing authorities or otherwise make a commitment, consent to do any extension or waiver of any limitation period with respect to Taxes;
(v) not change any of its methods of reporting income, deductions or accounting for income Tax purposes from those employed in the foregoingpreparation of its most recent income Tax Return except as may required by applicable Law; and
(vi) promptly inform Parent as to any material communication in respect of Taxes received by it after the date of this Agreement from any Governmental Authority.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from Until the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoClosing, except as set forth in Section 6.01 of the Disclosure Schedule or (1) as contemplated by any other provision of this AgreementAgreement or (2) as consented to by Elixir, the Plan Company shall, and shall cause each of Liquidation its Subsidiaries to, (i) carry on its business in the ordinary course consistent with past practice, (ii) use commercially reasonable efforts to preserve intact its business organization, to keep available the services of its current officers and employees and to preserve the Settlement Agreementgoodwill of and maintain satisfactory relationships with those Persons and entities having significant business relationships with the Company and its Subsidiaries, (iii) promptly advise Elixir in writing of any material change in the businesses business, condition (financial or otherwise), properties, customer or supplier relationships, assets, liabilities, prospects or results of operations of the Company and its subsidiaries shall be conducted inSubsidiaries and (iv) otherwise report periodically to Elixir concerning the status of the business, operations, and finances of the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of LiquidationSubsidiaries. Without limiting the preceding sentencegenerality of the foregoing, until the Closing, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretocontemplated by this Agreement or as required by applicable Legal Requirements, neither the Company nor any of its subsidiaries the Subsidiaries shall, directly or indirectlywithout the prior written consent of Elixir:
(a) amend or otherwise change propose any amendments to its Certificate certificate of Incorporation incorporation, bylaws or By-laws or equivalent other comparable organizational documents;
(b) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(c) sell, lease, license, mortgage or otherwise subject to any Lien or dispose of any of its properties or assets that are material to the Company and its Subsidiaries, taken as a whole;
(d) except for intercompany indebtedness between the Company and any Subsidiary or between any of the Subsidiaries of the Company, (i) incur any indebtedness (except for borrowings under any existing credit facility incurred in the ordinary course of business consistent with past practice) or (ii) enter into any financing arrangements or modify the terms of any existing indebtedness or financing arrangements or (iii) prepay any interest on any indebtedness;
(e) except as, individually or in the aggregate, does not have and is not reasonably expected to have, a Material Adverse Effect, enter into, modify, amend or terminate any Material Contract or waive, release or assign any rights or claims thereunder;
(f) make any change to its accounting methods, principles or practices, except as may be required by applicable generally accepted accounting principles;
(g) fail to use commercially reasonable efforts to maintain the material assets of the Company and the Subsidiaries in their current physical condition, except for ordinary wear and tear and damage;
(h) merge or consolidate with or into any other legal entity or dissolve or liquidate;
(i) except as required by the terms and provisions of written contracts between the Company or any Subsidiary of the Company, on the one hand, and an employee, on the other hand, as in existence on the date of this Agreement, (i) adopt, amend or terminate any employee benefit plan, (ii) enter into any new, or amend any existing, employment, severance, consulting or salary continuation agreements with any shareholders, officers, directors or employees or (iii) materially increase in any manner the aggregate compensation or benefits (including, without limitation, commissions) or severance or termination pay payable to any shareholder, officer, director, employee or independent contractor of any Company or any Subsidiary of any Company;
(j) issue, sell, grant options or rights to purchase, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant of options or encumbrance of, (i) rights to purchase or pledge any of the shares of any class of capital stock or other ownership interest of the Company or any Subsidiary, other than (A) shares of its subsidiariesCommon Stock issued upon the exercise of options or warrants outstanding as of the date hereof, or any options(B) shares of Common Stock or Common Stock Equivalents sold at a price of $2.65 per share or greater; provided, warrants, convertible securities or other rights however that in the event of any kind sale pursuant to clause (B) hereof, a corresponding increase shall be deemed to be made to the number of shares of Common Stock issuable pursuant to the warrants set forth in clause (i) of the definition of “New Warrants” such that, immediately following such increase, Elixir’s percentage ownership of voting securities of the Company, on an as-converted, fully-diluted basis (and assuming no sales of voting securities by Elixir), is not less than 75%;
(k) acquire or redeem, directly or indirectly, or amend the terms of any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesCommon Stock;
(cl) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REITsplit, combine or reclassify its capital stock or declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, property stock or otherwise, with respect to property) on any shares of its capital stock;
(dm) reclassifymake any Tax election;
(n) settle or agree to settle any suit, combineaction, splitclaim, subdivide proceeding or redeeminvestigation (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby); or
(o) authorize, or purchase commit or otherwise acquire, directly or indirectlyagree to take, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than foregoing actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with which would make any representation or warranty in this Agreement untrue or incorrect as of the terms of, the Plan date when made or as of Liquidation; or
(i) announce an intention, enter into any agreement a future date or otherwise make a commitment, to do which would result in any of the foregoingconditions set forth in Section 2.4 not being satisfied.
Appears in 1 contract
Samples: Securities Purchase and Product Participation Agreement (Vendingdata Corp)
Conduct of Business by the Company. The Company agrees that, During the period from the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B heretoEffective Time, except (i) as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 5.1(a) of the Company and its subsidiaries Disclosure Letter, (ii) as required by applicable Law, (iii) as consented to in writing in advance by Parent (which consent shall not be conducted inunreasonably withheld, and conditioned or delayed), (iv) as otherwise specifically required by this Agreement or (v) for transactions solely between or among the Company and any of its subsidiaries Subsidiaries, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice in all material respects and use reasonable best efforts to preserve intact its business organization, preserve its assets, rights and properties in good repair and condition, and preserve its goodwill and its relationships with employees, customers, suppliers, licensors, licensees, distributors and others having business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except (i) as set forth in Section 5.1(a) of the Company Disclosure Letter, (ii) as required by applicable Law, (iii) as consented to in writing in advance by Parent (which consent shall not take any action except inbe unreasonably withheld, and Purchaser shall not cause conditioned or delayed), (iv) as otherwise specifically required by this Agreement or (v) for transactions solely between or among the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, neither the Company nor any of its subsidiaries shallSubsidiaries, directly or indirectlythe Company shall not, and shall not permit any of its wholly-owned Subsidiaries to:
(ai) amend (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned Subsidiary of the Company to its parent, (B) purchase, redeem or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any acquire shares of any class of capital stock or other ownership equity interests of the Company or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests, except for purchases, redemptions or other acquisitions of Company Common Stock in connection with the forfeiture, exercise or vesting of any Company Stock Option or Company Restricted Stock or (C) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests, other than in connection with the exercise of any Company Stock Option or Company Restricted Stock;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock or other equity interests or any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of the Company on a deferred basis or other rights linked to the value of shares of Company Common Stock (other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on February 28, 2011 in accordance with their terms as in effect on such date, (B) the issuance of shares of Company Common Stock pursuant to the terms of the Company ESPP as in effect on the date of this Agreement and (C) grants of equity compensation to newly hired employees that are below vice president level in the ordinary course of business consistent with past practice, provided, for purposes of this clause (C), that the number of shares of Company Common Stock so granted, including such shares as may be subject to stock options so granted, shall not exceed 200,000);
(iii) amend its articles of incorporation or by-laws (or similar organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the Company and its Subsidiaries, other than (1) components, inventory or supplies acquired in the ordinary course of business consistent with past practice and (2) new capital expenditures, which shall be subject to the limitations of clause (viii) below;
(v) directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose in whole or in part of any of its material properties, assets or rights or any interest therein, except in the ordinary course of business consistent with past practice;
(vi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(vii) (A) incur, create, assume or otherwise become liable for, or repay or prepay, any indebtedness for borrowed money, any obligations under conditional or installment sale Contracts or other retention Contracts relating to purchased property, any capital lease obligations or any guarantee of any such indebtedness of any other Person, issue or sell any debt securities, options, warrants, calls or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of any other Person, enter into any “keepwell” or other agreement to maintain any financial statement condition of any other Person or enter into any arrangement having the economic effect of any of the foregoing (collectively, “Indebtedness”), or amend, modify or refinance any Indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(viii) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto that is in excess of $300,000 individually or $1,000,000 in the aggregate;
(ix) (A) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than (1) the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice and (2) payments permitted by clause (xi) below, (B) cancel any material indebtedness or (C) waive, release, grant or transfer any right of material value;
(x) (A) modify, amend, terminate, cancel or extend any Company Material Contract, which if so modified, amended, terminated or cancelled would reasonably be expected to adversely affect in any material respect the Company or any of its Subsidiaries, taken as a whole, or (B) enter into any Contract that if in effect on the date hereof would be a Company Material Contract, other than in the case of each of (A) and (B) above, in the ordinary course of business consistent with past practice;
(xi) commence any Action (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of money damages not in excess of $200,000 individually or $500,000 in the aggregate, in any case without the imposition of any equitable relief on, or the admission of wrongdoing by, the Company;
(xii) change its financial accounting methods, principles or practices, except insofar as may be required by a change in GAAP, applicable Law or the Company’s outside auditor, or revalue any of its material assets;
(xiii) settle or compromise any material liability for Taxes, amend any material Tax Return, make or revoke any material Tax election, adopt or change any method of accounting for Tax purposes (except for any such adoption or change of method as may be required by applicable Law or the Company’s outside auditor), surrender any right to a claim for refund of Taxes, or change any Tax reporting method, policy or procedure (except for any such change of method, policy or procedure as may be required by applicable Law or the Company’s outside auditor);
(xiv) change its fiscal year;
(xv) except as required by applicable Law or the terms of a Company Plan or as expressly provided in Section 5.14, (A) grant any current or former director, officer, employee or independent contractor any increase in cash compensation, bonus opportunity, tax gross up or other material benefits, or any optionssuch grant of any type of compensation or benefits to any current or former director, warrantsofficer, convertible securities employee or other rights independent contractor not previously receiving or entitled to receive such type of compensation or benefit, or pay any bonus of any kind or amount to acquire any shares current or former director, officer, employee or independent contractor, other than (1) changes in employee benefits made in the ordinary course of business consistent with past practice, (2) increases in base salary in connection with merit assessments, which increases and assessments are in the ordinary course of business consistent with past practice, provided that the aggregate amount of any such capital stockincreases for all employees in a department of the Company may not exceed 3% of the aggregate base salaries of all employees in such department, and (3) increases in base salary in connection with promotions, which increases and promotions are in the ordinary course of business consistent with past practice, (B) grant or pay to any current or former director, officer, employee or independent contractor any severance, change in control or termination pay, or tax gross up, or modifications thereto or increases therein, other than in the ordinary course of business consistent with past practice, (C) pay any benefit or grant or amend any award (including in respect of stock options, stock appreciation rights, performance units, restricted stock or other ownership interest stock-based or stock-related awards or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except with respect to non-equity based awards in the ordinary course of business consistent with past practice, (includingD) adopt or enter into any collective bargaining agreement or other labor union contract, without limitation(E) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Plan or other Contract or (F) adopt any new employee benefit plan or arrangement or amend, modify or terminate any phantom interest)existing Company Plan, except in the ordinary course of business consistent with past practice, in each case for the benefit of any current or former director, officer, employee or independent contractor, other than as required by applicable Law;
(xvi) knowingly fail to keep in force insurance policies or replacement or revised provisions regarding insurance coverage with respect to the assets, operations and activities of the Company and its Subsidiaries as currently in effect;
(xvii) renew or enter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, in any material respect, the operations of the Company or any of its subsidiaries Subsidiaries after the Effective Time;
(xviii) waive any material benefits of, or (ii) agree to modify in any assets of adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any standstill or similar agreement to which the Company or any of its subsidiariesSubsidiaries is a party;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iiixix) enter into any contract or agreement other than in accordance with the Plan new line of Liquidation; or business outside of its existing business;
(ivxx) enter into any new lease or amend the terms of any contract, agreement, commitment or arrangement with respect to any matter set forth existing lease of real property that would require payments over the remaining term of such lease in this Section 6.01(e) except as permitted by clauses (ii) and (iii)excess of $200,000 per year;
(fxxi) increase the compensation payable abandon or permit to its directors lapse any registered Company Registered IP or officers or hire disclose any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect material trade secret except pursuant to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidationbinding confidentiality undertakings; or
(ixxii) announce an intentionauthorize any of, enter into or commit or agree to take any agreement or otherwise make a commitmentof, to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (TomoTherapy Inc)
Conduct of Business by the Company. The Company agrees thatExcept as required by applicable law or regulation and except as otherwise contemplated by this Agreement, from until the date earlier of the termination of this Agreement until or the date that new directors are appointed to Closing Date, the Board pursuant to Section 3 Company shall, and shall cause each of Annex B heretoits subsidiaries to, except conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, the Plan of Liquidation and the Settlement Agreement, the businesses 5.1 of the Company and its subsidiaries shall be conducted in, and the Company and its subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 of the Disclosure Schedule, prior as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by Parent, in writing, after the date that new directors are appointed to hereof and until the Board pursuant to Section 3 earlier of Annex B heretothe termination of this Agreement or the Closing Date, neither the Company nor any of its subsidiaries shall, directly or indirectlyshall not:
(a) amend or otherwise change its Certificate of Incorporation or Byby-laws or equivalent organizational documentslaws;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, of (i) any shares of any class of capital stock or other ownership interest of the Company or any of its subsidiariesclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stockshares, or any other ownership interest (includinginterest, without limitationthereof, any phantom interest), of the Company or any of its subsidiaries or (ii) any assets of the Company or any of its subsidiariesassets, tangible or intangible, other than in the ordinary course of business;
(c) except in accordance with the Plan of Liquidation and solely to the extent necessary for the Company to qualify as a REIT, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockshares;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockshares;
(e) (i) acquire (including, without limitation, for cash or shares of stock, by mergerPurchase, consolidation, or acquisition of stock or assets or assets) any other business combination) interest in any corporation, partnership, partnership or other business organization or any division thereof, real or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any material amount of assets; other person, (ii) except for borrowings under existing credit facilitiesin the ordinary course of business, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant (iii) enter into any security interest in any of its assets Company Material Contract except in the ordinary course of business; ;
(iiif) make any capital expenditure in excess of $100,000 or enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employeestherefore;
(g) take any action, other than actions required by GAAP or except in the ordinary course of business, with respect to accounting policies sell or procedurestransfer any of its inventory or other tangible assets;
(h) terminateamend, repeal, amend terminate or otherwise change, extend any Company Material Contract;
(i) delay or take accelerate payment of any action inconsistent account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with the terms of, the Plan of Liquidationpast practice; or
(ij) announce an intentionagree, enter into any agreement in writing or otherwise make a commitmentotherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty contained in Article III untrue or incorrect.
Appears in 1 contract
Conduct of Business by the Company. The Company agrees that, from during the period commencing on the date of this Agreement until the date that new directors are appointed to the Board pursuant to Section 3 of Annex B hereto, except and ending as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision earlier of (x) the Closing, and (y) termination of this AgreementAgreement in accordance with ARTICLE VIII (such period, the Plan of Liquidation and the Settlement Agreement“Pre-Closing Period”), the businesses each of the Company and its subsidiaries Subsidiaries shall, except as (A) otherwise required or expressly permitted by this Agreement (including by any Ancillary Agreement), (B) consented to in writing by Acquiror, which consent shall not be conducted inunreasonably withheld, and conditioned or delayed, (C) required by or in response to any Law or other directive by a Governmental Authority (including the implementation of any COVID-19 Measures) or (D) set forth on Schedule 6.1:
(a) use commercially reasonable efforts to conduct its business in the Ordinary Course of Business; provided, that, in the case of a COVID-19 Response, the Company and its subsidiaries Subsidiaries shall not take any action except in, and Purchaser shall not cause the Company and its subsidiaries be deemed to take any action except in, accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation. Without limiting the preceding sentence, except as disclosed in Section 6.01 be acting outside of the Disclosure Schedule, prior to the date that new directors are appointed to the Board pursuant to Section 3 Ordinary Course of Annex B hereto, neither the Company nor any of its subsidiaries shallBusiness;
(b) not, directly or indirectly:
(ai) amend make any change in or otherwise change its Certificate amendment to any of Incorporation the Company Organizational Documents that would be adverse to Acquiror, or, other than in the Ordinary Course of Business, form or By-laws or equivalent organizational documentsestablish any Subsidiary;
(bii) (A) make, declare or pay any dividend or distribution (whether in cash, stock, equity securities or property), other than dividends or distributions between or among the Company and any of its wholly-owned Subsidiaries, (B) effect any recapitalization, reclassification, split or other change in the Company’s or its Subsidiaries’ capitalization or (C) authorize for issuance, issue, sell, transfer, pledge, dispose of, grant, encumber, dispose of or authorize the issuancedeliver any shares of its capital stock or securities (including debt securities) convertible into or exchangeable for shares of its capital stock or voting interests, saleor issue, sell, transfer, pledge, dispositionencumber or grant any right, grant option or encumbrance ofother commitment for the issuance of shares of its capital stock, (i) or split, combine or reclassify any shares of its capital stock;
(iii) (A) except in the Ordinary Course of Business, amend, modify or terminate, prior to the expiration of its term or the completion of performance of any class obligations of capital stock the Company, any Material Contract or any Lease, (B) waive, delay the exercise of, release or assign any material rights or claims under any Material Contract or any Lease, or (C) enter into any Contract of a type required to be listed on Schedule 4.11(a);
(iv) issue or sell any debt securities or warrants or other ownership interest rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries or guaranty any debt securities or incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness for borrowed money in excess of $10,000,000, other than (A) in connection with borrowings, extensions of credit and other financial accommodations under the Company’s and its Subsidiaries’ existing credit facilities, notes and other existing Indebtedness, (B) in connection with refinancings of existing Indebtedness for borrowed money upon market terms and conditions (as determined by the Company in good faith) (C) for drawdowns of credit facilities available as of the date hereof and/or (D) in connection with the Debt Financing, if consummated prior to the Closing;
(v) (A) enter into any collective bargaining agreement or other Contract with a trade union or other labor organization, or (B) recognize or certify any trade union, other labor organization or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries;
(vi) terminate the service or employment (other than for cause) of any executive officer of the Company;
(vii) except as otherwise required pursuant to any Company Benefit Plan in effect on the date of this Agreement, grant any material increase in compensation, benefits or severance to any director or officer of the Company, other than (A) annual increases in compensation, benefits or severance made in the Ordinary Course of Business and (B) severance payable in accordance with a Company Benefit Plan in effect on the date of this Agreement;
(viii) engage in any material new line of business;
(ix) except for a Permitted Company Acquisition, (1) acquire or agree to acquire by merger or consolidation with, or merge, consolidate or combine with, or purchase substantially all of the assets of, any business or any corporation, partnership, association, joint venture or other business organization or division thereof or Person (2) purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any securities, properties or businesses or (3) adopt or enter into a plan of complete or partial liquidation, dissolution or winding up, restructuring, recapitalization or other reorganization (other than the Transactions);
(x) other than (x) in the Ordinary Course of Business and (y) between or among the Company and any of its wholly-owned Subsidiaries, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of the Company’s or its Subsidiaries’ officers, directors, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person;
(xi) (A) make any change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP, including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or applicable Law or (B) make any change in the auditors of the Company;
(xii) waive, release, compromise, settle, pay or satisfy any claim, or any optionsclaim threatened (which shall include any pending litigation or threatened litigation), warrantsin each case, convertible securities for amounts in excess of $5,000,000 in the aggregate, other than in the Ordinary Course of Business and as would not prohibit or other rights materially restrict the Company or its Subsidiaries from operating their respective businesses substantially as currently conducted; provided that, for the avoidance of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitationdoubt, any phantom interest)stockholder litigation related to this Agreement, any Ancillary Agreement or the Transactions shall be subject to the provisions of Section 6.18; or
(xiii) enter into any binding agreement or otherwise making a binding commitment to take any of the foregoing actions. Acquiror acknowledges and agrees that: (x) nothing contained in this Agreement, including the restrictions set forth in this Section 6.1, shall give Acquiror, directly or indirectly, the right to control or direct the operations of the Company or any of its subsidiaries or Subsidiaries prior to the Closing, and (iiy) any assets of prior to the Closing, the Company or any of and its subsidiaries;
(c) except in accordance with the Plan of Liquidation and solely Subsidiaries shall exercise, subject to the extent necessary for the Company to qualify as a REITterms and conditions of this Agreement, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of complete control and supervision over its capital stock;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, 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, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) enter into any contract or agreement other than in accordance with the Plan of Liquidation; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e) except as permitted by clauses (ii) and (iii);
(f) increase the compensation payable to its directors or officers or hire any employees;
(g) take any action, other than actions required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures;
(h) terminate, repeal, amend or otherwise change, or take any action inconsistent with the terms of, the Plan of Liquidation; or
(i) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoingoperations.
Appears in 1 contract
Samples: Merger Agreement (Fortress Value Acquisition Corp. II)
