Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except as contemplated by this Agreement, shall not engage in any activity that is outside the ordinary course of business and not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, during the period described in the first sentence above, (a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
Appears in 4 contracts
Samples: Share Purchase Agreement (Tefron LTD), Share Purchase Agreement (Tefron LTD), Share Purchase Agreement (Tefron LTD)
Conduct of Business of Company. Following Except as expressly ------------------------------ provided for herein, during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Options outstanding on the date of this Agreement;
(iii) amend its articles of organization, subscriptionsby-laws or other comparable charter or organizational documents;
(iv) directly or indirectly acquire, rights to purchase or otherwise)make any investment in, or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) directly or investments inindirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, except for sales, pledges or other Person; dispositions or encumbrances in the ordinary course of business consistent with past practice;
(ivi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any changes loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under the Existing Credit Agreement (as hereinafter defined) in the ordinary course of business consistent with past practice or pursuant to Advances provided for in Section 6.11;
(vii) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law;
(viii) accelerate the payment, right to payment or vesting of any senior employeebonus, consultant severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(ix) enter into or amend any employment, consulting, severance or similar agreement with any individual, except with respect to new hires of non-officer employees in the ordinary course of business consistent with past practice;
(x) adopt or directorenter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (jas hereinafter defined);
(xi) make any tax election or settle or compromise any income tax liability of Company or of any of its Subsidiaries involving on an individual basis more than $50,000;
(xii) make any change in any method of accounting or accounting practice or policy, except as required by any changes in generally accepted accounting principles;
(xiii) enter into any contract, agreement, understanding or commitment that restrains, limits or arrangement impedes Company's ability to compete with respect to or conduct any business or line of business;
(xiv) except as specified in Section 5.1 of the Disclosure Schedule, plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(xv) accelerate the collection of any account receivable or delay the payment of any account payable, or otherwise reduce the assets or increase the liabilities of Company or any of its Subsidiaries otherwise than in the foregoingordinary course of business consistent with past practice, in any such case with the purpose or effect of using the resulting increase in the cash flow of Company or any of its Subsidiaries to reduce the total indebtedness of Company and its Subsidiaries for money borrowed; or
(xvi) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1.
Appears in 3 contracts
Samples: Merger Agreement (Sterling Software Inc), Merger Agreement (Sterling Software Inc), Merger Agreement (Cayenne Software Inc)
Conduct of Business of Company. Following Except as expressly provided for in this Agreement, during the period commencing on the date hereof of this Agreement and through ending on the earlier earliest of (Aa) such time as Parent's Designees shall comprise a majority of the members of the Board of Directors of Company, (b) the Effective Time, and (c) termination of this Agreement pursuant to Section 5.1 hereof8.1, Company and (B) the Closing, the Company its Significant Subsidiary shall maintain its regular course of business act and except as contemplated by this Agreement, shall not engage carry on their respective operations only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact their respective business organizations, keep available the services of their respective key officers and not deviate from its ordinary course employees and preserve the goodwill of businessthose engaged in significant business relationships with them. Nothing herein shall be deemed to restrict To that end, without limiting the Company from taking actions that are required to be taken under this Agreement in order to consummate generality of the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitationforegoing, except as contemplated by expressly provided for in this AgreementAgreement or in the Disclosure Schedule, neither the Company nor any its Significant Subsidiary shall without the prior written consent of its subsidiaries shall, during the period described in the first sentence above, Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than regular quarterly dividends not in excess of $.05 per share), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitments, subscriptions, rights to purchase other than upon the exercise of Options outstanding on the date of this Agreement;
(iii) amend its certificate of incorporation or otherwisebylaws (or comparable governing documents), except for any amendment required in connection with the performance by Company or amend its Significant Subsidiary of its obligations under this Agreement including but not limited to its obligations under Section 1.4;
(iv) acquire, make any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individuallyinvestment in, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, any person or investments inentity other than in the ordinary course of business;
(v) transfer, sell, lease, license, guarantee, mortgage, pledge or otherwise dispose or encumber any of its properties or assets that are material to its business, except in the ordinary course of business consistent with past practice, or otherwise in accordance with the transactions contemplated by this Agreement;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other Person; than borrowings under existing credit facilities (ior extension of such credit facilities) described in the Filed SEC Reports or otherwise in accordance with the transactions contemplated by this Agreement, including the Transaction Financing, or (B) make any changes loans or advances to any other person or entity, other than routine advances to employees consistent with past practice;
(vii) grant or agree to grant to any officer of Company any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Benefit Plans, except as may be required under existing agreements or by law or pursuant to the compensation normal severance policies or benefits practices of Company as in effect on the date of this Agreement, or increases in salary or wages payable or to become payable in the ordinary course of business or establish, adopt, enter into or amend or terminate 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 senior employeedirectors, consultant officers or employees, except in the ordinary course of business;
(viii) (A) enter into or amend any employment, consulting, severance or similar agreement with any individual other than in the ordinary course of business, except with respect to new hires of non-officer or director, employees in the ordinary course of business or (jB) amend any noncompetition or nonsolicitation agreement with any officer of Company;
(ix) enter into any contractagreement that restrains, agreement, commitment limits or arrangement impedes Company's ability to compete with respect to or conduct any business or line of the foregoing.business;
Appears in 2 contracts
Samples: Merger Agreement (Associated Materials Inc), Merger Agreement (AMH Holdings, Inc.)
Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except Except as contemplated by this AgreementAgreement or as permitted by the provisions of this Section 5.1, during the period from the date hereof to the Effective Time, the Company shall, and shall not engage cause each of its subsidiaries to, conduct its operations in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and not deviate from its ordinary course effort than would be applied in the absence of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither seek to preserve intact its current business organizations, seek to keep available the service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement or in Section 5.1 of the Company nor Disclosure Schedule, prior to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries shallto, during without the period described in the first sentence above, prior written consent of Parent:
(a) amend its certificate or otherwise change the Company’s organizational documents, articles of incorporation or bylaws (or other similar governing instrument);
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or issue, sell, deliver or agree or commit to issue issue, sell or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise)) any stock of any class or any other securities or equity equivalents (including, without limitation, any stock options or amend stock appreciation rights) or accelerate the vesting schedule or make any of other modifications to the terms of existing stock options, except for (i) the issuance or sale of shares of Company Common Stock pursuant to outstanding options granted prior to the date hereof under the Company Option Plans, (ii) pursuant to the Company's employee stock purchase plan described in Section 5.1 of the Company Disclosure Schedule or (iii) the granting of options (having an exercise price not less than the fair market value of the Company Common Stock at the time of such grant) to purchase up to 50,000 shares of Company Common Stock under the Company Option Plans;
(c) split, combine or reclassify any such shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of its subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries other than the Merger (except that the Company and/or any subsidiary of the Company may adopt a plan of merger in connection with (i) a merger of any subsidiary of the Company into the Company or another subsidiary of the Company or (ii) an acquisition or disposition of a business or assets otherwise permitted by this Section 5.1);
(e) mergealter through merger, acquire liquidation, reorganization, restructuring or dispose in any other fashion the corporate structure or ownership of any subsidiary, except for any such alteration which would not reasonably be expected to have a material asset or invest in a another company, Material Adverse Effect on the Company;
(f) incurexcept as may be required by Law (i) enter into, assume adopt or prepay amend or terminate any indebtedness bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund, award or other arrangement for the benefit or welfare of any director, officer or employee in any manner (other liabilities than (A) renewals (following reasonable prior notice to Parent) of employment arrangements with any officer or manager (or replacement for an officer or manager) on terms substantially similar to such officer's or manager's (or replaced officer's or manager's) existing agreement or the entering into of employment arrangements with talent hired in the ordinary course of business consistent with past practice or (B) with respect to employees (but not executive officers or directors), severance or termination arrangements in the ordinary course of business consistent with past practice or with respect to payments not in excess of $100,000 individually25,000 in any one case, or in excess of $500,000 100,000 in the aggregate (other than trade payablesor in accordance with the Company's severance guidelines in effect on the date hereof), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.or
Appears in 2 contracts
Samples: Merger Agreement (Westwood One Inc /De/), Merger Agreement (Metro Networks Inc)
Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except Except as contemplated by this AgreementAgreement or as specifically set forth in Schedule 6.1 of Seller's Disclosure Schedule, shall not engage in any activity that is outside during the ordinary course period from the date of business this Agreement to the Effective Time, Seller will cause each Acquired Company and not deviate from its Subsidiaries to conduct its operations according to its ordinary course of business, consistent with past practice, will use its commercially reasonable efforts to (i) preserve intact its business organization, (ii) maintain its material rights and franchises, (iii) keep available the services of its officers and key employees, and (iv) keep in full force and effect insurance comparable in amount and scope of coverage to that maintained as of the date hereof. Nothing herein shall be deemed Without limiting the generality of and in addition to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification foregoing, and not limitation, except as otherwise contemplated by this Agreement, neither the Acquired Company nor any of its subsidiaries shalltheir Subsidiaries will, during without the period described in the first sentence above, prior written consent of Parent;
(a) amend its charter or otherwise change the Company’s by-laws (or other organizational documents, );
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or issue, sell, deliver or agree or commit to issue issue, sell or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise)) any stock of any class or any other securities or, or except as required by law, amend any of the terms of any such securities or agreements outstanding on the date hereof, except for (i) the issuance by Company of Company Shares upon exercise of Company Options outstanding on the date hereof and (ii) the granting of options upon cancellation of existing options, so long as the aggregate number of options outstanding at any time prior to the Effective Time does not exceed the number of options outstanding on the date hereof;
(c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (ewhether in cash, stock or property or any combination thereof) mergein respect of its capital stock or redeem or otherwise acquire any of its securities or any securities of its Subsidiaries; provided, acquire however, that each Acquired Company (and its Subsidiaries) may, prior to the Effective Time, declare and pay cash dividends in respect of their capital stock;
(i) pledge or dispose a material asset otherwise encumber shares of capital stock of either Acquired Company or invest any of their Subsidiaries; or (ii) except in a another companythe ordinary course of business consistent with past practices, (fA) incur, assume or prepay any indebtedness long-term debt or incur, assume, or prepay any obligations with respect to letters of credit or any other liabilities in excess of $100,000 individuallymaterial short- term debt, unless after the incurrence or in excess of $500,000 assumption thereof all such debt for the Acquired Companies and their Subsidiaries does not in the aggregate exceed $105 million; (other than trade payables), (gB) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the any material obligations of any other Person, person except wholly owned Subsidiaries of each Acquired Company; (hC) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (D) change the practices of either Acquired Company or its Subsidiaries with respect to the timing of payments or collections; or (E) except as contemplated by existing credit arrangements set forth on Seller's Disclosure Schedule, mortgage or pledge any properties or assets of either Acquired Company or any of its Subsidiaries or create or permit to exist any material Encumbrance thereupon;
(e) except (i) make for arrangements entered into in the ordinary course of business consistent with past practices, (ii) as contemplated by this Agreement with respect to the Company Options, or (iii) as required by Law, enter into, adopt or materially amend or change the funding or accrual practices of any changes to bonus, 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 of either Acquired Company or any of its Subsidiaries (or any other person for whom either Acquired Company or any of its Subsidiaries will have liability), or (except for normal increases in the ordinary course of business that are consistent with past practices) increase in any manner the compensation or fringe benefits of any senior employeeemployee of either Acquired Company or any of its Subsidiaries (or any other person for whom either Acquired Company or any of its Subsidiaries will have liability) or pay any benefit not required by any existing plan and arrangement (including the granting of stock options, consultant officer stock appreciation rights, shares of restricted stock or director, performance units) or (j) enter into any contract, agreement, commitment or arrangement with respect to do any of the foregoing;
(f) transfer, sell, lease, license or dispose of any lines of business, Subsidiaries, divisions, operating units or facilities (other than facilities currently closed or currently proposed to be closed) outside the ordinary course of business or enter into any material commitment or transaction outside the ordinary course of business;
(g) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the properties or assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any properties or assets of any other Person (other than the purchase of properties or assets in the ordinary course of business and consistent with past practice), in each case where such action would be material to the Acquired Companies and their Subsidiaries;
(h) except as may be required by Law, take any action to terminate or materially amend any of its pension plans or retiree medical plans with respect to or for the benefit of any employee of either Acquired Company or any of its Subsidiaries (or any other person for whom either Acquired Company or any of its Subsidiaries will have liability);
(i) materially modify, amend or terminate any Acquired Company Material Contract or waive any material rights or claims of either Acquired Company or any of its Subsidiaries thereunder, except in the ordinary course of business consistent with past practice; provided, that the provisions of this Section 6.1(i) shall not apply to any arrangement, agreement or contract proposal previously submitted by either Acquired Company or a Subsidiary thereof which proposal, upon acceptance thereof, cannot be revised or withdrawn;
(j) effect any material change in any of its methods of accounting in effect as of August 31, 1996, except as may be required by Law or GAAP;
(k) enter into any Acquired Company Material Contract other than in the ordinary course of business; or
(l) enter into a legally binding commitment with respect to, or any agreement to take, any of the foregoing actions.
Appears in 1 contract
Conduct of Business of Company. Following Except as expressly provided ------------------------------ for herein, during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, act and (B) the Closing, the Company shall maintain carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business and not deviate from consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact its ordinary course of business. Nothing herein shall be deemed to restrict current business organizations, keep available the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any services of its subsidiaries shallcurrent key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, during and to that end, without limiting the period described in generality of the first sentence aboveforegoing, Company shall not, without the prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, securities or other property) in respect of, any of its outstanding capital stock, (B) split, combine or reclassify any of its outstanding capital stock or propertyissue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (dC) authorize purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for issuance, issue (except upon the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of outstanding stock optionsOptions;
(ii) or issue, sell, deliver grant, pledge or agree to issue or sell otherwise encumber any shares ofof its capital stock, any other voting securities or any securities convertible into or exchangeable for, or rights any rights, warrants or options to acquire acquire, any such shares, voting securities or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitmentsother than upon the exercise of Options outstanding on the date of this Agreement;
(iii) amend its articles of incorporation, subscriptionsby-laws or other organizational documents;
(iv) directly or indirectly acquire, rights to purchase or otherwise)make any investment in, or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) directly or investments inindirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, except for sales, pledges or other Person; dispositions or encumbrances in the ordinary course of business consistent with past practice;
(ivi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or (B) make any changes loans or advances to the any other person, other than routine advances to employees consistent with past practice;
(vii) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law;
(viii) accelerate the payment, right to payment or vesting of any senior employeebonus, consultant officer severance, profit sharing, retirement, deferred compensation, stock option, insurance or directorother compensation or benefits;
(ix) enter into or amend any employment, consulting, severance or similar agreement with any individual;
(jx) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as hereinafter defined);
(xi) make any tax election or settle or compromise any Tax liability of Company involving on an individual basis more than $10,000;
(xii) make any change in any method of accounting or accounting practice or policy (including any method, practice or policy relating to Taxes), except as required by any changes in generally accepted accounting principles or otherwise required by law;
(xiii) enter into any contract, agreement, understanding or commitment that restrains, limits or arrangement impedes Company's ability to compete with respect to or conduct any business or line of business;
(xiv) except as specified in Section 5.1 of the foregoingDisclosure Schedule, plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company;
(xv) accelerate the collection of any account receivable or delay the payment of any account payable, or otherwise reduce the assets or increase the liabilities of Company otherwise than in the ordinary course of business consistent with past practice, in any such case with the purpose or effect of using the resulting increase in the cash flow of Company to reduce the total indebtedness of Company for money borrowed; or
(xvi) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1.
Appears in 1 contract
Conduct of Business of Company. Following Except as set forth on Schedule 5.1, from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except as contemplated by this Agreement, shall not engage in any activity that is outside the ordinary course of business and not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate until the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitationDate, except as contemplated by this AgreementAgreement or expressly consented to by an instrument in writing signed by Buyer, neither Sellers will cause each Company to:
(a) conduct its business and operations only in the Company nor Ordinary Course of Business;
(b) not sell, assign, lease or transfer any of its subsidiaries shall, during the period described Properties other than in the first sentence above, (a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares Ordinary Course of its outstanding capital stock, Business;
(c) declarenot permit any securities of any Company to be sold, set aside redeemed or pay any dividend or other distribution payable in cash, stock or property, transferred;
(d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend not permit any of its Properties or securities to become subject to any Encumbrance;
(e) not issue any additional securities or participate in any merger or plan of equity split, exchange or recapitalization;
(f) not modify or terminate any Contract, instrument, license or Permit relating to its business, customers or creditors, other than in the Ordinary Course of Business;
(g) not hire any Employees for an annual salary over $50,000 or, other than in the Ordinary Course of Business, terminate any of its Employees;
(h) not grant any increase in the rate or terms of any such capital stock, (e) merge, acquire Employee Benefit Plan payment or dispose a material asset arrangement or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; Employee compensation;
(i) make not lend any changes funds, extend any credit or grant any discounts to the compensation or benefits of any senior employee, consultant officer or director, or Person;
(j) not engage in any transaction with any Related Person;
(k) not enter into any Contract, make or in any way commit to any capital expenditure, in each case for an amount greater than $50,000;
(l) intentionally omitted;
(m) pay when due all accounts payable;
(n) not (A) make, revoke or change any Tax election, (B) change any Tax accounting period, (C) change or revoke any Tax accounting method, (D) file any amended Tax Return, (E) enter into any contract“closing agreement” within the meaning of Section 7121 of the Code (or any comparable agreement under applicable Tax Law), agreement(F) settle or compromise any Tax Claim, commitment investigation, audit, controversy or arrangement assessment, (G) surrender any right to claim a refund of Taxes, (H) consent to any extension or waiver of the limitation period applicable to any Tax Claim, investigation, audit, controversy or assessment (I) enter into any “power of attorney” with respect to Taxes, in each case, with respect to any of the Companies;
(o) not amend or propose to amend its Organizational Documents; and
(p) maintain and preserve (i) its Properties in good repair, order and condition (ordinary wear and tear excepted), including, without limitation, performing, in a manner and on a basis consistent with past practice, all periodic maintenance and necessary reconditioning and (ii) all insurance upon the Properties and operations of each Company in such amounts, scope and coverage as are comparable to that in effect as of the date hereof; and
(q) not acquire or enter into any agreement to acquire any business(whether by asset purchase, stock purchase, merger or otherwise).
(r) Without limiting the generality of the foregoing, prior to the Closing Date, Sellers will cause each Company not to take any action which would be reasonably likely to (i) result in the incorrectness in any material respect as of the Closing Date of any representation and warranty contained in Article III, or (ii) adversely affect in any material respect the ability of the parties to consummate the Transactions (including due to the non-fulfillment of any of the covenants or conditions set forth in this Agreement). Prior to the Closing, each of the transactions comprising the Reorganization shall be consummated as described in the applicable recital hereto and in compliance with all Applicable Law.
Appears in 1 contract
Conduct of Business of Company. Following Except as expressly provided for herein (including, without limitation, Section 6.9 hereof relating to Company Options), during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior written consent of Parent:
(a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (ci) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate Parent), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (eiii) mergepurchase, redeem or otherwise acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness shares of its outstanding capital stock or any other liabilities in excess of $100,000 individuallyrights, warrants or in excess of $500,000 options to acquire any such shares, except, in the aggregate case of this clause (other than trade payablesiii), for the acquisition of Shares from holders of Company Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Options;
(gb) assumeissue, guaranteesell, endorse grant, pledge or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations encumber any shares of any other Person, (h) make any material loans, gifts, advances or its capital contributions to, or investments instock, any other Person; (i) make voting securities or any changes to the compensation securities convertible into or benefits of any senior employee, consultant officer or directorexchangeable for, or (j) enter into any contractrights, agreementwarrants or options to acquire, commitment or arrangement with respect to any of the foregoing.such shares, voting securities or
Appears in 1 contract
Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except Except as contemplated by this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, shall not engage during the period from the date hereof to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in any activity that is outside the ordinary course of business consistent with past practice, and, to the extent consistent therewith and not deviate from with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its ordinary course current business organizations, keep available the service of business. Nothing herein its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be deemed to restrict unimpaired at the Company from taking actions that are required to be taken under this Agreement in order to consummate Effective Time. Without limiting the Closing or that are otherwise permitted herein or required under applicable law. By way generality of amplification and not limitationthe foregoing, except as contemplated by otherwise expressly provided in this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither the Company nor any of its subsidiaries shallwill, during without the period described in the first sentence above, prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):
(a) amend its Charter or otherwise change the Company’s organizational documents, bylaws (or other similar governing instrument);
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or issue, sell, deliver or agree or commit to issue sell or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or amend subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants;
(c) split, combine or reclassify any shares of the terms of any such its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger);
(e) mergealter, acquire through merger, liquidation, reorganization, restructuring or dispose a material asset or invest in a another companyany other fashion, the corporate structure of ownership of any subsidiary;
(f) incur(i) incur or assume any long-term or short-term debt or issue any debt securities, assume or prepay any indebtedness or any other liabilities in excess except for borrowings under existing lines of $100,000 individually, or in excess of $500,000 credit in the aggregate ordinary course of business provided that notice is provided to Parent; (other than trade payables), (gii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (hiii) make any material loans, gifts, advances or capital contributions toto or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or investments increate or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due);
(g) except as set forth in Section 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other Personemployee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); provided, however, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice;
(h) except as set forth in Section 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate;
(i) make except as may be required as a result of a change in law or in generally accepted accounting principles, change any changes to of the compensation accounting principles or benefits of any senior employee, consultant officer or director, or practices used by it;
(j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business;
(i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract, contract or agreement, commitment other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or arrangement with respect expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 provided that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts;
(l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole;
(m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; or
(n) take or agree in writing or otherwise to take any of the foregoingactions described in Sections 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.
Appears in 1 contract
Samples: Merger Agreement (Coffee People Inc)
Conduct of Business of Company. Following During the period from the date hereof and through of ------------------------------ this Agreement to the earlier Effective Time of the Merger (A) termination except as otherwise specifically required by the terms of this Agreement pursuant to Section 5.1 hereofAgreement), Company shall, and (B) the Closingshall cause its Subsidiaries to, the Company shall maintain its regular course of business act and except as contemplated by this Agreement, shall not engage carry on their respective businesses in any activity that is outside the ordinary course of business consistent with past practice and not deviate from use all its ordinary course and their respective reasonable efforts to preserve intact their current business organizations, keep available the services of businesstheir current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with them and to preserve goodwill. Nothing herein shall be deemed to restrict Without limiting the Company from taking actions that are required to be taken under this Agreement in order to consummate generality of the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shallforegoing, during the period described in from the first sentence abovedate of this Agreement to the Effective Time of the Merger, Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer, which consent shall not be unreasonably withheld:
(a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by a Subsidiary of Company to Company in accordance with applicable law;
(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;
(c) purchase, redeem or otherwise acquire any shares of capital stock of Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other distribution payable securities, except for the cash-out (or in cashthe case of the warrants issued under the Xxxxxxx Warrant Agreement, stock or property, the redemption in accordance with the current terms thereof) of Company Stock Options and Warrants (as provided in Section 3.2) outstanding on the date of this Agreement;
(d) authorize for issuance, issue issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its Subsidiaries, 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 other securities or equity equivalents (except including without limitation stock appreciation rights) other than the issuance of Company Common Stock upon the exercise of Company Stock Options and Warrants outstanding stock optionson the date of this Agreement and in accordance with their present terms (such issuances, together with the acquisitions of shares of Company Common Stock permitted under clause (c) above, being referred to herein as "Permitted Changes");
(e) amend its certificate or sellarticles of incorporation, deliver bylaws or other comparable charter or organizational documents;
(f) subject to the provisions of Section 7.6 hereof and except as set forth in Section 6.1(f) of the Disclosure Schedule, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization;
(g) other than as specifically described in Section 6.1 of the Disclosure Schedule, mortgage or otherwise encumber or subject to any Lien (in each case except as provided by the existing terms of Company's credit agreements) or otherwise dispose of, sell, lease or license any of its properties or assets, other than sales of inventory in the ordinary course of business consistent with past practice;
(h) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any shares of, debt securities or warrants or other rights to acquire any debt securities of Company or convertible any of its Subsidiaries, guarantee any debt securities of another Person, enter into any shares of, its capital stock (whether through "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the issuance or granting economic effect of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stockforegoing, (e) mergeexcept for borrowings under current credit facilities and for lease obligations, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 each case incurred in the aggregate ordinary course of business consistent with past practice;
(other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (hi) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; , other than to Company or any Subsidiary of Company;
(j) pay, discharge or satisfy any claims (including claims of shareholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), except for the payment, discharge or satisfaction (i) make any changes of liabilities or obligations in the ordinary course of business consistent with past practice or in accordance with their terms as in effect on the date hereof or (ii) claims settled or compromised to the compensation or benefits of any senior employee, consultant officer or directorextent permitted by Section 6.1(n), or waive, release, grant, or transfer any rights of material value or modify or change in any material respect any existing license, lease, Permit, contract or other document, other than in the ordinary course of business consistent with past practice;
(jk) adopt resolutions providing for or authorizing a liquidation or a dissolution;
(l) enter into any contractnew collective bargaining agreement;
(m) change any material accounting principle used by it, agreementexcept to the extent required by generally accepted accounting principles;
(n) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid (after giving effect to insurance proceeds actually received) in settlement or compromise is not greater than $50,000;
(o) make any new capital expenditure or expenditures, commitment other than capital expenditures not to exceed $200,000, in the aggregate;
(p) except in the ordinary course of business or arrangement otherwise permitted by this Agreement, modify, amend or terminate any contract or agreement set forth in the SEC Documents filed and publicly available prior to the date of this Agreement to which Company or any Subsidiary is a party or waive, release or assign any material rights or claims;
(q) except as set forth in Section 6.1(q) of the Disclosure Schedule, (i) enter into any employment or other agreement with respect to any officer, director or key employee of Company or any of its Subsidiaries or (ii) hire or agree to hire any new or additional key employees with annual compensation of $50,000 or more or officers;
(r) make any Tax election or settle or compromise any material Tax liability;
(s) voluntarily take, or voluntarily agree to commit to take, any action that would make any representation or warranty of Company contained herein inaccurate in any material respect at, or as of any time prior to, the foregoingEffective Time of the Merger; or
(t) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Desc Sa De Cv)
Conduct of Business of Company. Following During the period from the date hereof of this Agreement and through continuing until the earlier of (A) the termination of this Agreement pursuant or the Effective Time, Company agrees to Section 5.1 hereofconduct the business of the Company, except to the extent that Parent shall otherwise consent in writing, in the usual, regular and (B) the Closing, the Ordinary Course. Company shall maintain its regular course not, without the prior written consent of business Parent, from and except as contemplated by after the date of this Agreement:
(a) Incur any liability not otherwise reflected (or specifically anticipated) in the Current Balance Sheet.
(b) take or omit to take any action that would, shall not engage if taken prior to the execution of this agreement, that would result in a breach of any of the representations, warranties or covenants made by Company in this Agreement;
(c) take any action or omit to take any action which act or omission would reasonably be anticipated to have a Material Adverse Effect;
(d) enter into any Contract out of the Ordinary Course or restricting in any activity that is outside material respect the ordinary course conduct of its business;
(e) make any loans or investments (other than advances for business expenses to Company’s or its Subsidiaries’ employees in the Ordinary Course consistent with past custom and not deviate from practice);
(f) increase or decrease the compensation, incentive arrangements or other compensation or benefits to any officer or employee of Company or its ordinary course Subsidiaries, hire or terminate an employee or amend any Company Employee Plan; amend any Company security (other than cancelling all outstanding Company options and warrants) or utilize discretion under any employee benefits plan of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing Company.
(g) redeem, purchase or that are otherwise permitted herein acquire directly or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor indirectly any of its subsidiaries shallissued and outstanding Company Capital Stock, during the period described or any outstanding rights or securities exercisable or exchangeable for or convertible into its Company Capital Stock, or declare or pay or make any distribution or dividend (whether in the first sentence above, cash securities or otherwise) to any of its shareholders or other Persons; or
(ah) amend its certificate of incorporation or otherwise change the Company’s organizational bylaws (or equivalent documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver issue or agree to issue any Company Capital Stock or sell any shares ofrights or options to acquire, or rights to acquire or securities convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securitiesfor, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingits Company Capital Stock.
Appears in 1 contract
Conduct of Business of Company. Following Except as expressly provided for herein or in Section 4.1 of the Disclosure Schedule, during the period from the date hereof and through of this Agreement to the earlier of (A) the termination of this Agreement pursuant to Section 5.1 hereofor the Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company. To that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Options outstanding on the date of this Agreement and the issuance of shares of Company Common Stock issuable to participants in the Company ESPP consistent with the terms thereof and Section 2.2(d) hereto;
(iii) amend its certificate of incorporation, subscriptionsbylaws or other comparable charter or organizational documents;
(iv) directly or indirectly acquire, rights make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to purchase its business, except for sales, pledges or otherwiseother dispositions or encumbrances in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice;
(vii) make any new capital expenditure or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities expenditures in excess of $100,000 individually, or in excess of $500,000 1,000,000 in the aggregate aggregate;
(other than trade payables)viii) enter into, (g) assumeamend or terminate any Material Contract, guarantee, endorse or otherwise become liable waive release or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make assign any material loans, gifts, advances rights or capital contributions to, or investments in, any other Person; claims;
(i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (jix) enter into any contractcompromise or settlement of, agreementor take any other material action with respect to, commitment any litigation, action, suit, claim, proceeding or investigation other than the prosecution, defense and settlement of routine litigation, actions, suits, claims, proceedings or investigation in the ordinary course of business;
(x) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law;
(xi) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(xii) enter into or amend any employment, consulting, severance or similar agreement or arrangement with any individual, except with respect to new hires of non-officer employees in the ordinary course of business consistent with past practice;
(xiii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as defined in Section 5.5(d)), except as permitted by Section 5.5;
(xiv) make or rescind any tax election or settle or compromise any income tax liability of Company or of any of its Subsidiaries involving on an individual basis more than $50,000;
(xv) make any change in any method of accounting or accounting practice or policy, except as required by any changes in generally accepted accounting principles;
(xvi) enter into any agreement, understanding or commitment that restrains, limits or impedes Company’s ability to compete with or conduct any business or line of business;
(xvii) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(xviii) intentionally take any action that would result in (A) any of its representations and warranties set forth in this Agreement becoming untrue or (B) except to the extent such action is otherwise expressly contemplated by this Agreement, any of the foregoingconditions set forth in ARTICLE VI not being satisfied; or
(xix) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 4.1.
Appears in 1 contract
Conduct of Business of Company. Following During the period from and including the date hereof of this Agreement and through continuing until the earlier of (A) the termination of this Agreement pursuant in accordance with its terms or the Effective Time, Company agrees (except as consented to Section 5.1 hereofin writing by Parent) to carry on its business in the Ordinary Course of Business. Company further agrees to pay its debts and Taxes when due, to pay or perform its other obligations when due, and (B) to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organization, keep available the Closingservices of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, consultants and others having business dealings with it. Company agrees to promptly notify Parent of any event or occurrence not in the Ordinary Course of Business or which is reasonably likely to have a Material Adverse Effect on Company, except that the Company shall maintain may repay its regular course of business and except as contemplated by this Agreement, shall not engage in any activity that is outside the ordinary course of business and not deviate from its ordinary course of business. Nothing herein shall be deemed existing debt obligations to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable lawVLL. By way of amplification and not limitation, except as contemplated by Company shall not, between the date of this AgreementAgreement and the Effective Time, neither the Company nor directly or indirectly, do, or agree to do, any of its subsidiaries shall, during the period described in following without the first sentence above, prior written consent of Parent:
(a) amend cause or otherwise change permit any amendments to its Certificate of Incorporation or Bylaws, other than as may be advisable in connection with the Company’s organizational documents, 's current Series C Preferred financing;
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside declare or pay any dividend dividends on or make any other distribution payable distributions (whether in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise in respect of outstanding stock options) or sell, deliver or agree to issue or sell any shares ofof its capital stock, or rights to acquire split, combine or convertible into reclassify any shares of, of its capital stock (whether through or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise)its capital stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service;
(c) enter into any material contract or commitment, or violate, amend or otherwise modify or waive any of the terms of any such capital stockof the Material Contracts, other than as set forth in Schedule 1.6(a)(vi) of the Company Disclosure Schedule and other than in connection with the repayment of its debt obligations to VLL and its affiliates;
(d) enter into or become a party to any agreement, contract, arrangement, understanding or obligation regarding the Intellectual Property Rights of Company, including, without limitation, any original equipment manufacturing agreements, distribution agreements, reseller agreements, end-user agreement, research or development agreement or evaluation agreement;
(e) mergeexcept in connection with the Company's current Series C Preferred financing, acquire issue, deliver or dispose a material asset sell or invest in a another companyauthorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities exchangeable for or convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible or exchangeable securities, other than the issuance of options to purchase Common Stock pursuant to existing agreements or offer letters and other than the issuance of shares of capital stock pursuant to the exercise of stock options, warrants or other rights or the conversion of Preferred Stock outstanding as of the date of this Agreement;
(f) incur, assume transfer or prepay grant to any indebtedness person or entity any other liabilities in excess of $100,000 individually, rights to or in excess Intellectual Property Rights of $500,000 in the aggregate (other than trade payables), Company;
(g) assumesell, guaranteelease, endorse license or otherwise become liable dispose of or responsible (whether directly, contingently encumber any of Company's properties or otherwise) for the obligations of any other Person, assets;
(h) make incur any material loans, gifts, advances indebtedness for borrowed money or capital contributions to, guarantee any such indebtedness or investments in, issue or sell any other Person; debt securities or guarantee any debt securities of others;
(i) pay, discharge or satisfy, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements or incurred in the Ordinary Course of Business and reasonable expenses incurred in connection with the transactions contemplated by this Agreement, subject to Section 9.1;
(j) make any changes capital expenditures, capital additions or capital improvements not in the Ordinary Course of Business;
(k) terminate or waive any right of substantial value, other than the amendment or termination of the Loan Agreement or as set forth in Schedule 1.6(a)(vi) of the Company Disclosure Schedule;
(l) adopt or amend any employee benefit or stock purchase or option plan, or hire any new director, officer, consultant or employee, pay any special bonus or special remuneration to the compensation or benefits of any senior officer, employee, consultant officer or director (except pursuant to existing agreements with such persons) or increase the salaries, wage rates, bonus or compensation of any director, officer, employee or consultant;
(jm) enter into grant any contractseverance or termination pay to any director, agreementofficer, commitment consultant, employee or arrangement with service provider;
(n) commence a lawsuit;
(o) acquire or agree to acquire by merging or consolidating with, purchasing equity interests, or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or entity or division thereof, or otherwise acquire or agree to acquire any assets;
(p) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) take any other action outside the Ordinary Course of Business; or
(r) take or agree in writing or otherwise to take, any of the foregoingactions described in Sections 4.1(a) through (q), or any action which would make any of Company's representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent Company from performing or cause it not to perform its covenants hereunder in any material respect.
Appears in 1 contract
Samples: Merger Agreement (McData Corp)
Conduct of Business of Company. Following During the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Closing Date, and (B) the Closing, the Company shall maintain conduct its regular operations only according to its ordinary and usual course of business and preserve intact its business organization, keep available the services of its officers and employees, maintain satisfactory relationships with licensors, suppliers, distributors, clients and others having business relationships with Company, and perform in all material respects all of Company's obligations under all Contracts to which Company is a party or by which it or any of its assets or properties are bound. Without limiting the foregoing, prior to the Closing Date, except as contemplated may be first approved in writing by SciQuest or otherwise permitted or required by this Agreement, Company shall not engage cause (a) Company's Organizational Documents to be maintained in their forms on the date of this Agreement, (b) the compensation payable or to become payable by Company to each officer, employee or agent of Company to be maintained at their levels on the date of this Agreement, (c) Company to refrain from making any activity bonus, pension, retirement or insurance payment or arrangement to or with any such Persons except those that is outside may have already been accrued, (d) Company to refrain from entering into any Contract except Contracts in the ordinary course of business and not deviate from its ordinary course having a value of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing less than $5,000 individually or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, during the period described $10,000 in the first sentence above, (a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stockaggregate, (e) mergeCompany to refrain from making any change affecting any bank, acquire safe deposit or dispose a material asset or invest in a another companypower of attorney arrangements of Company, (f) incur, assume Company to refrain from issuing or prepay any indebtedness or any other liabilities in excess of $100,000 individuallyselling, or issuing any Stock Acquisition Rights for, or subdividing or otherwise changing in excess any respect any securities of $500,000 in the aggregate (other than trade payables)Company, and (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes Company to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to refrain from taking any of the actions referred to in Section 2.24 hereof. During the period from the date of this Agreement to the Closing Date, Company shall confer on a regular and frequent basis with one or more designated representatives of SciQuest to report on the status of ongoing operations. Company shall notify SciQuest of any unexpected emergency or other change in the normal course of Company's business or in the operation of its properties and of any governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), ad judicatory proceedings, budget meetings or submissions involving any property of Company, and keep SciQuest fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith. Notwithstanding the foregoing, nothing in this Agreement shall restrict Company from taking such action as may be reasonably necessary in order to preserve the operations, business, properties and assets of Company.
Appears in 1 contract
Samples: Merger Agreement (Sciquest Inc)
Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except Except as expressly contemplated by this Agreement, shall not engage Agreement or set forth in any activity that is outside the ordinary course of business and not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate Disclosure Letter or with the Closing or that are otherwise permitted herein or required under applicable law. By way prior written consent of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shallother party, during the period described from the date of this Agreement to the Effective Time, the Company will, and will cause each of its Subsidiaries to, conduct its operations only in the first sentence aboveordinary and usual course of business consistent with past practice and will use its commercially reasonable efforts, and will cause each of its Subsidiaries to use its commercially reasonable efforts, to preserve intact the business organization of the Company and its Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the good will of those having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in the Company Disclosure Letter, the Company agrees that it will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of the other party:
(a) amend adopt any amendment to its Certificate of Incorporation or otherwise change the Company’s Bylaws or comparable organizational documents, ;
(b) splitexcept for issuances of capital stock of Subsidiaries to itself or its wholly-owned Subsidiary, combineissue, reclassify reissue, pledge or redeem any sell, or authorize the issuance, reissuance, pledge or sale of (i) additional shares of its outstanding capital stock of any class, or securities convertible into, exchangeable for or evidencing the right to substitute for, capital stock of any class, or any rights, warrants, options, calls, commitments or any other agreements of any character, to purchase or acquire any capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, capital stock, other than the issuance of Shares, pursuant to the exercise of Company Stock Options outstanding on the date hereof; or (ii) any other securities;
(c) declare, set aside or pay any dividend or other distribution payable (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between the Company and any of its wholly-owned Subsidiaries including any dividend required to be declared, set aside or propertypaid pursuant to the Certificates of Designation, Preferences and Rights of the Parent Preferred Stock;
(d) authorize for issuancesplit, issue (except upon the exercise of outstanding stock options) combine, subdivide, reclassify or sellredeem, deliver purchase or agree otherwise acquire, or propose to issue redeem or sell purchase or otherwise acquire, any shares ofof its capital stock, or rights any of its other securities;
(e) except for (i) increases in salary and wages granted to acquire officers and employees of the Company or convertible into any shares ofits Subsidiaries in conjunction with promotions or other changes in job status or normal compensation reviews (within the amounts projected in the Company's 2000 operating plan previously provided to Parent) in the ordinary course of business consistent with past practice; or (ii) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements in effect on the date hereof, increase the compensation or benefits payable or to become payable to its capital stock directors, officers or employees (whether through from the issuance Company or granting any of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwiseits Subsidiaries), or amend pay or award any benefit not required by any existing plan or arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units pursuant to the Company Plans or otherwise) or grant any additional severance or termination pay to (other than as required by existing agreements or policies, each of which are described in the Company Disclosure Letter) 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, amend, accelerate any rights or benefits or waive any performance or vesting criteria under any collective bargaining, bonus, profit sharing, thrift, compensation, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan (other than any automatic acceleration of all unvested options as a result of this transaction as provided in the applicable plan), agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees (any of the terms foregoing being an "Employee Benefit Arrangement"), except in each case to the extent required by applicable law or regulation or existing plan or agreement;
(f) acquire, sell, lease or dispose of any such assets or securities which are material to and used in the operations of the Company and its Subsidiaries, or acquire any businesses, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction, in each case outside the ordinary course of business consistent with past practice other than transactions between a wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company; provided, however, that the Company and its Subsidiaries shall not, during the period from the date hereof to the Effective Time, make or commit to make capital stock, expenditures that are not disclosed in Part 5.1(f) of the Company Disclosure Letter that in the aggregate exceed $50,000. Any permitted capital expenditures may be made through leasing arrangements.
(e) merge, acquire or dispose a material asset or invest in a another company, (fg) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individuallypre-pay, or in excess modify or amend the terms of, any long-term or short-term debt of $500,000 the Company or its Subsidiaries, except that the Company and its Subsidiaries may (i) incur or pre-pay debt in the aggregate ordinary course of business in amounts and for purposes consistent with past practice under existing lines of credit; (other than trade payables), (gii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, person in the ordinary course of business consistent with past practice; or (hiii) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; person but only in the ordinary course of business consistent with past practice and loans, advances, capital contributions or investments between any wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company;
(h) settle or compromise any material suit or claim or material threatened suit or claim;
(i) make other than in the ordinary course of business consistent with past practice, (i) modify, amend or terminate any changes contract; (ii) waive, release, relinquish or assign any contract (or any of the Company's rights thereunder), right or claim; or (iii) cancel or forgive any indebtedness owed to the compensation Company or benefits any of any senior employee, consultant officer or director, or its Subsidiaries;
(j) enter into make any contracttax election not required by law or settle or compromise any tax liability, agreementin either case that is material to the Company and its Subsidiaries;
(k) make any material change, commitment other than in the ordinary course of business and consistent with past practice or arrangement with respect as required by applicable law, regulation or change in generally accepted accounting principles, applied by the Company (including tax accounting principles);
(l) initiate, solicit, negotiate or discuss any proposal or offer to acquire all or any material part of the business, assets, properties or associated technologies of the Company or any Subsidiary or of any third party;
(m) agree in writing or otherwise to take any of the foregoingforegoing actions prohibited under Section 5.1 or any action which would cause any representation or warranty in this Agreement to be or become untrue or incorrect in any material respect.
Appears in 1 contract
Samples: Merger Agreement (Sheldahl Inc)
Conduct of Business of Company. Following Except as expressly contemplated by this Agreement or as described on SCHEDULE 5.5, during the period from the date hereof and through to the earlier of (A) termination of this Agreement pursuant Effective Time, Company will use its best efforts to Section 5.1 hereof, and (B) the Closing, the Company shall maintain conduct its regular course of business and except as contemplated by this Agreement, shall not engage operations in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and not deviate from effort than would be applied in the absence of this Agreement, seek to preserve intact its ordinary course current business organizations, keep available the service of business. Nothing herein its current officers and Employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be deemed to restrict unimpaired at the Company from taking actions that are required to be taken under this Agreement in order to consummate Effective Time. Without limiting the Closing or that are otherwise permitted herein or required under applicable law. By way generality of amplification and not limitationthe foregoing, except as contemplated by otherwise expressly provided in this Agreement, neither the Company nor any of its subsidiaries shallAgreement or as described on SCHEDULE 5.5, during the period described in from the first sentence abovedate hereof to the Effective Time, Company will not, without the prior written consent of Parent:
(a) amend its Articles of Incorporation or otherwise change the Company’s organizational documents, bylaws in any material respect;
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or issue, sell, deliver or agree or commit to issue issue, sell or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise)) any shares of any class or any other securities or equity equivalents (including, without limitation, any options or appreciation rights) except for the issuance and sale of shares pursuant to options or warrants previously granted under the Stock Plans or otherwise;
(c) split, combine or reclassify any shares, declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of its shares, make any other actual, constructive or deemed distribution in respect of its shares or otherwise make any payments to the Stockholders in their capacity as such, or amend redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company (other than the terms of any such capital stock, Merger);
(e) merge, acquire (i) incur or dispose a material asset assume any long-term or invest in a another company, short-term debt or issue any debt securities (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (gii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, person except in the ordinary course of business consistent with past practice (hiii) make any material loans, gifts, advances or capital contributions toto or investments in any other person, (iv) pledge or otherwise encumber shares of the capital stock of Company, or investments in(v) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any lien thereupon (other Person; than Permitted Liens) or (vi) accelerate the repayment date of any debt;
(f) except as may be required by law, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, option, appreciation right, performance unit, stock equivalent, share purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase or accelerate in any manner the compensation, vesting schedule or fringe benefits of any director, officer or employee, grant any Company Options or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of appreciation rights or performance units);
(g) terminate the employment of any manager, officer or engineer;
(i) make any changes to the compensation acquire, sell, lease or benefits dispose of any senior employee, consultant officer fixed assets in any single transaction or directorseries of related transactions having a fair market value in excess of $50,000 in the aggregate, or (jii) acquire, sell, lease, license, transfer or otherwise dispose of any Intellectual Property;
(i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it;
(i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein, (ii) enter into any contractcontract or agreement other than in the ordinary course of business consistent with past practice which would be material to Company, agreement(iii) amend, commitment modify or arrangement with waive any right under any Material Agreement or any other material contract of Company, (iv) breach or otherwise violate the terms of any Material Agreement or any other material contract of Company or (v) authorize any new capital expenditure or expenditures which individually is in excess of $10,000 or in the aggregate are in excess of $500,000; PROVIDED, that none of the foregoing shall limit any capital expenditure required pursuant to existing contracts listed on Schedule 5.5(j);
(k) commence any litigation or binding dispute resolution process (other than in respect on any breach of or claim arising under this Agreement), or settle or compromise any pending or threatened suit, action or claim which (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could involve more than $25,000 or that would otherwise be material to Company or relates to any Intellectual Property matters;
(l) make or revoke any tax election or settle or compromise any income tax liability or agree to any tax audit;
(m) fail to file any Returns when due (or, alternatively, fail to file for available extensions) or fail to cause such Returns when filed to be complete and accurate in all material respects;
(n) fail to pay any taxes or other material debts when due;
(o) take any action or fail to take any action that could reasonably be expected to limit the utilization of any of the foregoingnet operating losses, built-in losses, tax credits or other similar items of Company under Section 382, 383, 384 or 1502 of the Code and the Treasury Regulations thereunder;
(p) allow any insurance policy relating to Company's assets, properties or business to be amended or terminated without replacing such policy with a policy providing at least equal coverage, insuring comparable risks and issued by an insurance company financially comparable to the prior insurance company;
(q) enter into any license, distribution, marketing, sales or other agreement out of the ordinary course of business;
(r) engage in any willful action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; or
(s) take or agree in writing or otherwise to take any of the actions described in SECTIONS 5.5(a) through 5.5(r) or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Silicon Image Inc)
Conduct of Business of Company. Following Except as expressly provided ------------------------------ for herein (including, without limitation, Section 6.9 hereof relating to Company Options), during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior written consent of Parent:
(a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (ci) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate Parent), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (iii) purchase, redeem or otherwise acquire any shares of its outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (iii), for the acquisition of Shares from holders of Company Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Options;
(b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Company Options outstanding on the date of this Agreement;
(c) amend its articles of incorporation, subscriptionsbylaws or other comparable charter or organizational documents;
(d) directly or indirectly acquire, rights make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(e) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to purchase its business, except for sales, pledges or otherwiseother dispositions or encumbrances in the ordinary course of business consistent with past practice;
(f) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company, or (ii) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine travel advances to employees or customer trade credit consistent with past practice, except, in the case of clause (i), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice;
(g) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law and normal, regularly scheduled increases in respect of non-officer employees consistent with past practices;
(h) enter into or amend any employment, consulting, severance or similar agreement with any individual, except with respect to new hires of nonofficer employees in the ordinary course of business consistent with past practice;
(i) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as defined in Section 6.3);
(j) make any tax election or settle or compromise any income tax liability of Company or of any of the terms its Subsidiaries involving on an individual basis more than $50,000;
(k) make any change in any method of accounting or accounting practice or policy, except as required by any changes in generally accepted accounting principles;
(l) enter into any agreement, understanding or commitment that restrains, limits or impedes Company's ability to compete with or conduct any business or line of business, except for any such agreement, understanding or commitment entered into in the ordinary course of business consistent with past practice;
(m) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(n) except as previously approved by the Board of Directors of Company prior to the date hereof and as identified to Parent prior to the date hereof, authorize or commit to make capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities expenditures in excess of $100,000 individually75,000;
(o) amend the Company Rights Plan except as required by this Agreement; or
(p) authorize any of, or commit or agree to take any of, the foregoing actions in excess respect of $500,000 in which it is restricted by the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations provisions of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingthis Section 5.1.
Appears in 1 contract
Conduct of Business of Company. Following Except as expressly provided for herein, during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence aboveprior written consent of Parent, which consent shall not be unreasonably withheld:
(a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (ci) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate Parent), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (iii) purchase, redeem or otherwise acquire any shares of its outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (iii), for the acquisition of Shares from holders of Company Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Options;
(b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Company Options outstanding on the date of this Agreement;
(c) amend its articles of incorporation, subscriptionsbylaws or other comparable charter or organizational documents;
(d) directly or indirectly acquire, rights make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(e) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to purchase its business, except for sales, pledges or otherwiseother dispositions or encumbrances in the ordinary course of business consistent with past practice;
(f) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company, or (ii) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine travel advances to employees or customer trade credit consistent with past practice, except, in the case of clause (i), for borrowings under existing credit facilities described in the Company's Disclosure Schedule in the ordinary course of business consistent with past practice;
(g) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law and normal, regularly scheduled increases in respect of non-officer employees consistent with past practices;
(h) enter into or amend any employment, consulting, severance or similar agreement with any individual, except with respect to new hires of nonofficer employees in the ordinary course of business consistent with past practice;
(i) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, share exchange or other material reorganization or any agreement involving any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or any significant portions of the assets of the Company or any of its Subsidiaries, in a single transaction or series of related transactions which could reasonably be expected to interfere with the terms completion of the Merger;
(j) make any tax election or settle or compromise any income tax liability of Company or of any of its Subsidiaries involving on an individual basis more than $25,000;
(k) make any change in any method of accounting or accounting practice or policy, except as required by any changes in generally accepted accounting principles;
(l) enter into any agreement, understanding or commitment that restrains, limits or impedes Company's ability to compete with or conduct any business or line of business, except for any such agreement, understanding or commitment entered into in the ordinary course of business consistent with past practice;
(m) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(n) except as previously approved by the Board of Directors of Company prior to the date hereof and as identified to Parent prior to the date hereof, authorize or commit to make capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities expenditures in excess of $100,000 individually50,000; or
(o) authorize any of, or commit or agree to take any of, the foregoing actions in excess respect of $500,000 in which it is restricted by the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations provisions of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoingthis Section 5.1.
Appears in 1 contract
Conduct of Business of Company. Following Except as expressly provided ------------------------------ for herein, during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Options and Warrants outstanding on the date of this Agreement;
(iii) amend its certificate of incorporation, subscriptionsbylaws or other comparable charter or organizational documents or amend or redeem the Company Rights Agreement;
(iv) directly or indirectly acquire, make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) make any new capital expenditure or expenditures in excess of $50,000 individually, or $250,000 in the aggregate, other than the specific capital expenditures disclosed and set forth on Schedule 5.1 of Company Disclosure Schedule;
(vi) amend or terminate any Material Contract where such amendment or termination would have a Material Adverse Affect on Company, or waive, release or assign any material rights or claims;
(vii) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to purchase its business, except for sales, pledges or other dispositions or encumbrances in the ordinary course of business consistent with past practice;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice;
(ix) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law;
(x) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(xi) enter into or amend any employment, consulting, severance or similar agreement with any individual other than consulting agreements entered into in the ordinary course of business involving payments in the aggregate for all such consulting agreements not in excess of $50,000 in any month and not with a term in excess of 90 days;
(xii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as defined in Section 6.5(d));
(xiii) make or rescind any tax election or settle or compromise any Tax liability of Company or of any of its Subsidiaries;
(xiv) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or amend any of the terms satisfaction (x) of any such capital stockclaims, liabilities or obligations in the ordinary course of business and consistent with past practice or (ey) mergeof claims, acquire liabilities or dispose a material asset obligations reflected or invest reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of Company and its consolidated Subsidiaries;
(xv) make any change in a another companyany method of accounting or accounting practice or policy (including any method, practice or policy relating to Taxes), except as required by any changes in generally accepted accounting principles or as otherwise required by law;
(fxvi) incursettle any action, assume suit, claim, investigation or prepay any indebtedness proceeding (legal, administrative or any other liabilities arbitrative) in an amount in excess of $100,000 individually, or in excess of $500,000 in the aggregate 50,000 (other than trade payablesthe settlement of the IQ class action (Xxxxxx Xxxxxx v. IQ Software Corporation, et al., N.D. Georgia, No. 1-97-CV3203) consistent with the terms of the Memorandum of Understanding, dated February 5, 1999), ;
(gxvii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make permit any material loansinsurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Parent, gifts, advances or capital contributions to, or investments in, any other Person; except in the ordinary course of business and consistent with past practice;
(i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (jxviii) enter into any contract, agreement, understanding or commitment that restrains, limits or arrangement impedes Company's ability to compete with or conduct any business or line of business, including, but not limited to, geographic limitations on Company's activities;
(xix) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(xx) accelerate the collection of any account receivable or delay the payment of any account payable, or otherwise reduce the assets or increase the liabilities of Company or any of its Subsidiaries otherwise than in the ordinary course of business consistent with past practice, in any such case with the purpose or effect of using the resulting increase in the cash flow of Company or any of its Subsidiaries to reduce the total indebtedness of Company and its Subsidiaries for money borrowed;
(xxi) take any action that would result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect to or (iii) any of the foregoingconditions to the Offer set forth in Exhibit A not being satisfied; or
(xxii) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1.
Appears in 1 contract
Conduct of Business of Company. Following During the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant through the Closing Date (the “Pre-Closing Period”), except (i) as expressly provided in this Agreement, (ii) as consented to Section 5.1 hereof, and in writing by Parent (Bwhich consent will not be unreasonably withheld or delayed) the Closingor (iii) as required by applicable Legal Requirements, the Company shall maintain will (1) conduct its regular course of business and except as contemplated by this Agreement, shall not engage in any activity that is outside the ordinary course of business, (2) use commercially reasonable efforts to preserve intact its present business organization, operations and not deviate from goodwill, and (3) preserve its ordinary course of business. Nothing herein shall be deemed relationships with customers, suppliers, distributors, licensors, licensees and others to restrict whom the Company from taking actions that are required to be taken under this Agreement in order to consummate or a Company Subsidiary has material contractual obligations. Without limiting the generality of the foregoing, during the Pre-Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitationPeriod, except (i) as contemplated by expressly provided in this Agreement, neither (ii) as consented to in writing by Parent (which consent will not be unreasonably withheld, conditioned or delayed), or (iii) as required by applicable Legal Requirements the Company nor any will not, and will cause each Company Subsidiary not to, without the prior written consent of its subsidiaries shall, during the period described in the first sentence above, Parent:
(a) amend the Company Charter or the bylaws of the Company or the organizational documents of any Company Subsidiary;
(b) transfer, issue, sell, pledge, encumber or dispose of any Company Shares or other securities of, or ownership interests in, the Company or any Company Subsidiary, or otherwise change its capitalization as it exists on the Company’s organizational documentsdate hereof, or issue, grant or sell any options, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any Company Shares, or any securities or obligations convertible into, or exercisable or exchangeable for, any Company Shares, or securities of any Company Subsidiary;
(bc) (i) effect any recapitalization, reclassification, stock split, combinecombination or like change in the capitalization of the Company or any Company Subsidiary, reclassify or redeem amend the terms of any shares outstanding securities of its outstanding capital stock, the Company or any Company Subsidiary or the underlying agreements related thereto; (cii) declare, set aside or pay any dividend or other distribution payable in cash, stock or propertyother property whether or not in respect of its capital stock; or (iii) redeem, purchase or otherwise acquire directly or indirectly any of the capital stock of the Company or any Company Subsidiary;
(d) authorize spend or commit to any new capital expenditures (other than capital expenditures already reserved pursuant to the budget for issuance, issue (except upon the exercise of outstanding stock optionscurrent fiscal year) or sell, deliver or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually250,000, whether individually or in the aggregate, other than as specified on Section 4.1(d) of the Company Disclosure;
(e) enter into or amend any agreement pursuant to which the Company or any Company Subsidiary grants or receives rights in or to any Intellectual Property;
(f) fail to take any action or pay any fee required in connection with the renewal, continuation, or in excess continued prosecution of $500,000 any Owned Intellectual Property;
(g) (i) grant or announce any increase in the aggregate salary, severance or other direct or indirect compensation or benefits payable or to become payable to any employee or consultant (except as required by applicable Legal Requirements or under any Company Employee Plan as in effect on the date hereof); (ii) grant any bonus, benefit or other direct or indirect compensation to any employee or consultant not required by applicable Legal Requirements or under any Company Employee Plan as in effect on the date hereof; (iii) loan or advance any money or other property to any employee or consultant (except advancement of expenses as required by applicable Legal Requirements or any existing Employee Plan as in effect on the date hereof in the ordinary course of business); or (iv) except as required by applicable Legal Requirements, amend, terminate, modify, extend, or materially increase the rate or terms of benefits provided under, any Company Employee Plan or enter into, grant, or adopt any arrangement that would be a Company Employee Plan if in effect on the date hereof;
(h) sell, assign, lease, transfer or license to any Person, or permit the imposition of any Encumbrance (other than trade payables), (gPermitted Encumbrances) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments inon, any of its material properties or material assets, other Person; than in the ordinary course of business;
(i) form any Subsidiary or acquire any interest in any other Person (except for short-term investments in the ordinary course of business);
(j) incur, create or assume any Indebtedness or amend, modify or make any changes to the compensation or benefits terms of any senior employeeIndebtedness, consultant officer except (i) pursuant to a contract, agreement, license, lease or directorother instrument existing on the date of this Agreement (ii) in an amount not to exceed $250,000, whether individually or in the aggregate, (iii) trade payables and similar obligations incurred in the ordinary course of business and consistent with past practices, (iv) obligations incurred in connection with the Company’s entry into or performance of its obligations under this Agreement; and (v) any such Indebtedness incurred in connection with the refinancing of any indebtedness existing on the date of this Agreement or permitted to be incurred, assumed or otherwise entered into hereunder;
(k) acquire or agree to acquire by merging with, or by purchasing a substantial portion of the equity interests or material assets of, or by any other manner, any material business or any Person or division thereof or otherwise acquire or agree to acquire any assets that are material individually or in the aggregate to the business of the Company and the Company Subsidiaries, taken as a whole;
(jl) amend, modify or change any of its accounting policies, practices or procedures, except as required by GAAP;
(m) materially amend, modify or make any changes in the Company’s or any Company Subsidiary’s standardized or other sales terms and conditions, other than in the ordinary course of business;
(n) materially delay or postpone any payment of any accounts payable or other payables or expenses, or materially accelerate the collection of accounts receivable or cash collections of any type, other than in the ordinary course of business;
(o) enter into any contractcontract or agreement that would be a Material Contract if it had been in existence on the date hereof, agreementor materially amend, commitment modify, elect not to renew or arrangement terminate any Material Contract, except, in each case, in the ordinary course of business;
(p) amend, modify, terminate or make any changes to the coverage levels of any material insurance coverage provided by existing insurance policies, other than in the ordinary course of business;
(q) institute any legal proceeding or claim, or compromise, settle, or fail to defend any pending legal proceeding or any claim, except for settlements or compromises in an amount less than $50,000, whether individually or in the aggregate, for which the Company and any applicable Company Subsidiary receives a full release;
(r) communicate with any Governmental Authority regarding the businesses of the Company or any Company Subsidiary with respect to any matter that would, or would reasonably be expected to, have a Company Material Adverse Effect or result in the institution of any investigation or legal proceeding against the Company or any Company Subsidiary;
(s) waive any right of material value;
(t) make, amend, modify, revoke or change any election in respect of Taxes, amend, modify, adopt or change (or make a request to change) any accounting method in respect of Taxes, enter into any Tax sharing, Tax indemnity or closing agreement, settle or compromise any claim, notice, audit report or assessment in respect of Taxes, file any amended Tax return or consent to any extension or waiver of the foregoinglimitation period applicable to any Tax return, Tax claim or assessment in respect of Taxes, in each case if such election, amendment, modification, adoption, change, agreement, settlement, filing, or consent would have the effect of increasing the Tax liability of the Company or any Company Subsidiary for any period ending after the Closing Date;
(u) enter into any commitment or transaction that would constitute a material breach of the representations, warranties or agreements contained in this Agreement, or take any action or fail to take an action or, to the extent within the Company’s or a Company Subsidiary’s control, permit to occur any event that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect; or
(v) agree or commit, whether in writing or otherwise, to take any of the actions described in Sections 4.1(a) through 4.1(u).
Appears in 1 contract
Samples: Merger Agreement (Techne Corp /Mn/)
Conduct of Business of Company. Following the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, the Company shall maintain its regular course of business and except Except as contemplated by this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, shall not engage during the period from the date hereof to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in any activity that is outside the ordinary course of business consistent with past practice, and, to the extent consistent therewith and not deviate from with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its ordinary course current business organizations, keep available the service of business. Nothing herein its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be deemed to restrict unimpaired at the Company from taking actions that are required to be taken under this Agreement in order to consummate Effective Time. Without limiting the Closing or that are otherwise permitted herein or required under applicable law. By way generality of amplification and not limitationthe foregoing, except as contemplated by otherwise expressly provided in this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither the Company nor any of its subsidiaries shallwill, during without the period described in the first sentence above, prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):
(a) amend its charter or otherwise change the Company’s organizational documents, bylaws (or other similar governing instrument);
(b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or issue, sell, deliver or agree or commit to issue sell or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted under Company Plans or amend pursuant to previously granted warrants;
(c) split, combine or reclassify any shares of the terms of any such its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to shareholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Merger);
(e) mergealter, acquire through merger, liquidation, reorganization, restructuring or dispose a material asset or invest in a another companyany other fashion, the corporate structure of ownership of any subsidiary;
(f) incur(i) incur or assume any long-term or short-term debt or issue any debt securities, assume or prepay any indebtedness or any other liabilities in excess except for borrowings under existing lines of $100,000 individually, or in excess of $500,000 credit in the aggregate ordinary course of business consistent with past practices provided that notice is provided to Parent; (other than trade payables), (gii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business consistent with past practices provided that notice is provided to Parent; (hiii) make any material loans, gifts, advances or capital contributions toto or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or investments in, create or suffer to exist any material Lien thereupon (other Person; than tax liens for Taxes not yet due and Liens incurred in the ordinary course of business securing borrowings permitted under clause (i) make above);
(g) except as set forth in Section 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any changes to bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any senior employeedirector, consultant officer or directoremployee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units);
(h) except as set forth in Section 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate, provided that none of the foregoing shall limit contracting for sale and sale of completed residences in the ordinary course of business consistent with past practices;
(i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it;
(j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business consistent with past practices;
(i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contractcontract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $250,000 provided that none of the foregoing shall limit any capital expenditure required pursuant to existing Projects or other existing contracts in the ordinary course of business consistent with past practices;
(l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole;
(m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company;
(n) pay, or award any increases in, any salary, wages, vacation pay, sick pay, bonuses or other compensation except in the ordinary course of business consistent with past practice;
(o) made any material change in the conduct of its business or operations, or take or omit to take any actions not in the ordinary course of business consistent with past practices;
(p) enter into any transaction, agreement, commitment arrangement or understanding with any affiliate of the Company, or amend or modify the terms of any existing agreement, arrangement or understanding with respect any affiliate of the Company;
(q) enter into any transaction, agreement, arrangement or understanding, or take any other action, that would prevent the Merger from qualifying as a tax free reorganization; or
(r) take or agree in writing or otherwise commit to take any of the foregoingactions described in Sections 4.1(a) through 4.1(q) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.
Appears in 1 contract
Samples: Merger Agreement (Writer Corp)
Conduct of Business of Company. Following Except as expressly provided for herein or in Section 4.1 of the Disclosure Schedule, during the period from the date hereof and through of this Agreement to the earlier of (A) the termination of this Agreement pursuant to Section 5.1 hereofor the Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company. To that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Options outstanding on the date of this Agreement and the issuance of shares of Company Common Stock issuable to participants in the Company ESPP consistent with the terms thereof and Section 2.2(d) hereto;
(iii) amend its certificate of incorporation, subscriptionsbylaws or other comparable charter or organizational documents;
(iv) directly or indirectly acquire, rights make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to purchase its business, except for sales, pledges or otherwiseother dispositions or encumbrances in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice;
(vii) make any new capital expenditure or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities expenditures in excess of $100,000 individually, or in excess of $500,000 1,000,000 in the aggregate aggregate;
(other than trade payables)viii) enter into, (g) assumeamend or terminate any Material Contract, guarantee, endorse or otherwise become liable waive release or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make assign any material loans, gifts, advances rights or capital contributions to, or investments in, any other Person; claims;
(i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (jix) enter into any contractcompromise or settlement of, agreementor take any other material action with respect to, commitment any litigation, action, suit, claim, proceeding or investigation other than the prosecution, defense and settlement of routine litigation, actions, suits, claims, proceedings or investigation in the ordinary course of business;
(x) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law;
(xi) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(xii) enter into or amend any employment, consulting, severance or similar agreement or arrangement with any individual, except with respect to new hires of non-officer employees in the ordinary course of business consistent with past practice;
(xiii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as defined in Section 5.5(d)), except as permitted by Section 5.5;
(xiv) make or rescind any tax election or settle or compromise any income tax liability of Company or of any of its Subsidiaries involving on an individual basis more than $50,000;
(xv) make any change in any method of accounting or accounting practice or policy, except as required by any changes in generally accepted accounting principles;
(xvi) enter into any agreement, understanding or commitment that restrains, limits or impedes Company's ability to compete with or conduct any business or line of business;
(xvii) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(xviii) intentionally take any action that would result in (A) any of its representations and warranties set forth in this Agreement becoming untrue or (B) except to the extent such action is otherwise expressly contemplated by this Agreement, any of the foregoingconditions set forth in ARTICLE VI not being satisfied; or
(xix) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (Elekta AB)
Conduct of Business of Company. Following During the date hereof and through Interim Period, each of the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereof, and (B) the Closing, Sellers shall cause the Company shall maintain to conduct its business only in the usual, ordinary and regular course of business and consistent with past practice. Without limiting the generality of the foregoing and except as expressly contemplated by this Agreement, during the Interim Period each of the Sellers shall cause the Company:
(a) not engage to take, approve or disclose an intention to take or refrain from taking any action intended to or that would reasonably be expect to result in, a breach or non-fulfilment of any condition set forth in the Offer;
(b) not to make or agree to make any activity that is outside material change in the ordinary course compensation of business any Director, Officer or Employee and not deviate from its to pay or agree to pay or set aside any bonus, profit sharing, retirement, insurance, death, severance or fringe benefit or other extra-ordinary or indirect compensation to, for or on behalf of any Director, Officer or Employee;
(c) not to sell, assign, transfer, mortgage, pledge or otherwise encumber any of the Assets, except for sales of Inventories in the normal course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, during the period described in the first sentence above, (a) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (c) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, ;
(d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree not to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, or investments in, any other Person; (i) make any changes to the compensation or benefits of any senior employee, consultant officer or director, or (j) enter into any contract, agreement, commitment or arrangement with respect transaction outside the normal course of business;
(e) not to issue any shares or other securities of the Company;
(f) not to declare or cause to be paid any dividend or make any other form of distribution or payment on the AAE Shares or any other securities of the Company;
(g) not to default in the performance of any term or condition of any Company Material Contract or Licenses and Permits;
(h) not to cancel or amend any policy of insurance which relates to the Company or any of the foregoingAssets, except with the prior written consent of the Purchaser;
(i) not to enter into any Company Material Contracts, except in the normal course of business;
(j) to maintain relations with the suppliers, customers and landlords of the Company in accordance with past custom and practice;
(k) to pay before delinquency all Taxes and other obligations which become due and payable by the Company; and
(l) generally, to carry on the Business in the normal course.
Appears in 1 contract
Samples: Support Agreement (O2diesel Corp)
Conduct of Business of Company. Following During the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to through the Closing Date (the “Pre-Closing Period”), except (i) as set forth in Section 5.1 hereofof the Disclosure Schedule, (ii) as consented to in writing by Purchaser (which consent shall not be unreasonably, withheld, conditioned or delayed) or (iii) as contemplated in this Agreement, (x) Seller shall cause the Company and its Subsidiaries to use commercially reasonable efforts to (1) carry on their respective businesses in the Ordinary Course of Business, (2) preserve intact their respective present business organizations in all material respects, and (B3) the Closingpreserve their respective relationships with customers, suppliers, distributors, licensors, licensees, and others to whom the Company and its Subsidiaries has material contractual obligations in all material respects and (y) Seller shall maintain cause the Company and its regular course Subsidiaries not to, without the prior written consent of business and except as contemplated by this Agreement, Purchaser (which consent shall not engage be unreasonably withheld, conditioned or delayed) (it being understood, however, that nothing contained in this Section 5.1 shall prevent any activity that is outside tax sharing payments to or by any member of the ordinary course of business and not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, during the period described in the first sentence above, DK Group):
(a) amend their respective certificate of incorporation or bylaws, as amended to date or amend the organizational documents of any Subsidiary of the Company;
(b) issue, purchase, redeem or sell any equity securities in the Company or a Subsidiary of the Company or any securities convertible into, or exercisable or exchangeable for, any equity securities in the Company or a Subsidiary of the Company, or otherwise change their respective capitalization as it exists on the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, date hereof;
(c) declareissue, set aside grant, or pay sell any dividend options, stock appreciation or purchase rights, warrants, conversion rights or other distribution payable in cashrights, stock securities or property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree commitments obligating it to issue or sell any shares ofequity securities in the Company or a Subsidiary of the Company, or rights to acquire any securities or obligations convertible into any shares ofinto, its capital stock (whether through the issuance or granting of options, warrants, convertible exercisable or exchangeable securitiesfor, commitmentsany equity securities in the Company or a Subsidiary of the Company;
(d) enter into or amend, subscriptionswaive any rights under or consent to any action (other than with respect to immaterial rights or actions) otherwise not permitted under any agreement pursuant to which the Company or one of its Subsidiaries (i) transfers or licenses to any Person any Owned Intellectual Property, (ii) terminates, amends, restates, supplements or waives any rights regarding any Owned Intellectual Property, other than in the Ordinary Course of Business, (iii) fails to purchase pay all maintenance and similar fees or otherwise)to take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of any material Owned Intellectual Property, or amend (iv) otherwise grants to any of the terms of person exclusive rights in any such capital stock, material Owned Intellectual Property;
(e) merge, (i) acquire or sell, lease, assign, transfer, convey, license or otherwise dispose a of any material asset property or invest assets, (ii) permit the imposition of any Encumbrance (other than Permitted Encumbrances) on, any of its properties or assets that are material to the Company and its Subsidiaries, or (iii) cancel any debts owed to or claims, or waive or release any material right, held by the Company or any of its Subsidiaries (other than any DK Group Internal Debt or LVMH Intercompany Debt), in a another companyeach case, outside the Ordinary Course of Business;
(f) incur, assume form any Subsidiary or prepay acquire any indebtedness or equity interest in any other liabilities Person;
(g) incur any Financial Debt in excess of $100,000 individually50,000, other than any LVMH Intercompany Debt;
(h) enter into any contract or agreement that would be a Material Contract if it had been in existence on the date hereof, or prematurely terminate or amend in any material respect any Material Contract except, in each case, in the Ordinary Course of Business or related to the LVMH Intercompany Debt;
(i) materially reduce the amount of any insurance coverage provided by the Insurance Policies other than upon the expiration of any such policy or take any action that would cause any of the Insurance Policies or other insurance to lapse or be revoked, except with respect to Insurance Policies that will expire and be replaced in the Ordinary Course of Business;
(j) acquire or agree to acquire by merging with, or by purchasing a substantial portion of the equity interests or assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets that are material, individually or in the aggregate, to the Current Company Business;
(k) except for any conduct that does not change, affect and/or impair any Post-Closing Tax Period Taxes of the Company or any of its Subsidiaries, none of the Seller, any member of Seller’s U.S. consolidated group, the Company or any of its Subsidiaries shall make, change or revoke any material election in respect of Taxes, or adopt or change any accounting method in respect of Taxes, file any amended Tax return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a refund for Taxes, or consent to any extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes;
(l) except as required pursuant to the Material Contracts or otherwise required by applicable Legal Requirement (i) increase (or promise or make any representation to increase) the compensation (including bonuses) or fringe benefits payable on or after the date hereof, or to become payable on or after the date hereof to any current or former employee, director or executive officer of the Company or any of its Subsidiaries (other than in the Ordinary Course of Business with respect to employees who are not officers or directors of the Company or any of its Subsidiaries), (ii) grant any severance or termination pay to any current or former employee, director or executive officer of the Company or any of its Subsidiaries other than in the Ordinary Course of Business, (iii) loan or advance any money or other property to any present or former director, officer or employee of the Company or any of its Subsidiaries, (iv) establish, adopt, enter into, amend (other than amendments that are required by Legal Requirement or that would result in de minimis liability to the Company) or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement in any manner that would increase or otherwise enhance the benefits provided or to be provided to any employee or other service provider, (v) terminate any employees or induce, or attempt to induce, any of such employees, whether directly or indirectly, to terminate their employment with or services to the Company or any of its Subsidiaries, except for any such terminations effectuated for cause or in the Ordinary Course of Business or (vi) hire any employee receiving annual salary in excess of $100,000;
(m) forgive or cancel any material debt or claim or waive any right of material value, except for the repayment of LVMH Intercompany Debt, including relating to Tax sharing payments with respect thereto;
(n) make any capital expenditures, or binding commitments therefor, during 2016 of $250,000 for any single item or series of related items or in excess of $500,000 4,500,000 in the aggregate from the date hereof through December 31, 2016;
(o) enter into or materially amend any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company or any of its Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any Persons other than trade payables), in the Ordinary Course of Business;
(g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (hp) make any material loans, gifts, advances investments in or capital contributions loans to, pay any fees or investments inexpenses to, enter into or modify any contract with any Related Party, except to the extent required by Legal Requirement or pursuant to any existing Material Contract or otherwise in the Ordinary Course of Business;
(q) except as required as a member of the New York Coat and Suit Association, Inc., enter into, modify (including by extension or renewal) or terminate any labor or collective bargaining agreement;
(r) effect any recapitalization or reclassification or split, combine or subdivide the securities of the Company or any of its Subsidiaries;
(s) institute or settle any Proceeding other Person; than in the Ordinary Course of Business;
(it) make any changes dividend to its equity holders, other than to another member of the compensation or benefits DK Group;
(u) take any action which would adversely affect in any material manner the ability of any senior employee, consultant officer or director, or the Parties to consummate the Transaction;
(jv) enter into any contractlease, agreementsublease, commitment license or arrangement other use and occupancy agreement with respect to real property that would be a Lease if it had been in existence on the date hereof, or prematurely terminate, modify, or amend any Lease; and
(w) enter into a binding agreement to take any of the foregoingactions described in Sections 5.1(a) through 5.1(v).
Appears in 1 contract
Samples: Stock Purchase Agreement (G Iii Apparel Group LTD /De/)
Conduct of Business of Company. Following Except as expressly ------------------------------ provided for herein, during the period from the date hereof and through the earlier of (A) termination of this Agreement pursuant to Section 5.1 hereofthe Effective Time, Company shall, and (B) the Closingshall cause each of its Subsidiaries to, the Company shall maintain act and carry on its regular course of business and except as contemplated by this Agreement, shall not engage only in any activity that is outside the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company, and to that end, without limiting the generality of the foregoing, Company shall not, and shall not deviate from its ordinary course of business. Nothing herein shall be deemed to restrict the Company from taking actions that are required to be taken under this Agreement in order to consummate the Closing or that are otherwise permitted herein or required under applicable law. By way of amplification and not limitation, except as contemplated by this Agreement, neither the Company nor permit any of its subsidiaries shallSubsidiaries to, during without the period described in the first sentence above, prior consent of Parent:
(ai) amend or otherwise change the Company’s organizational documents, (b) split, combine, reclassify or redeem any shares of its outstanding capital stock, (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (whether in cash, stock securities or other property, (d) authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell, deliver or agree to issue or sell any shares in respect of, or rights to acquire or convertible into any shares of, of its outstanding capital stock (whether through other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or granting in substitution for shares of optionsits outstanding capital stock, warrantsor (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Common Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options;
(ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, commitmentsother than upon the exercise of Options outstanding on the date of this Agreement;
(iii) amend its certificate of incorporation, subscriptionsbylaws or other comparable charter or organizational documents;
(iv) directly or indirectly acquire, rights to purchase or otherwise)make any investment in, or amend any of the terms of any such capital stock, (e) merge, acquire or dispose a material asset or invest in a another company, (f) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (g) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (h) make any material loans, gifts, advances or capital contributions to, any person other than in the ordinary course of business consistent with past practice;
(v) directly or investments inindirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, except for sales, pledges or other Person; dispositions or encumbrances in the ordinary course of business consistent with past practice;
(ivi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any changes loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Financial Statements in the ordinary course of business consistent with past practice;
(vii) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law and normal, regularly scheduled increases in respect of non-officer employees consistent with past practices;
(viii) pay any bonuses to any officer, employee or consultant, whether or not accrued, discretionary, objectively measured or otherwise;
(ix) enter into or amend any employment, consulting, severance or similar agreement with any individual, except with respect to new hires of non-officer employees in the ordinary course of business consistent with past practice;
(x) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any agreement relating to an Acquisition Proposal (as hereinafter defined);
(xi) make any tax election or settle or compromise any income tax liability of Company or of any senior employeeof its Subsidiaries, consultant officer in either case involving on an individual basis more than $50,000;
(xii) make any change in any method of accounting or directoraccounting practice or policy, or except as required by any changes in generally accepted accounting principles;
(jxiii) enter into any contract, agreement, understanding or commitment that restrains, limits or arrangement impedes Company's ability to compete with respect to or conduct any business or line of business, except for any such agreement, understanding or commitment entered into in the ordinary course of business consistent with past practice;
(xiv) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of Company or its Subsidiaries;
(xv) accelerate the collection of any account receivable or delay the payment of any account payable, or otherwise reduce the assets or increase the liabilities of Company or any of its Subsidiaries otherwise than in the foregoing.ordinary course of business consistent with past practice, in any such case with the purpose or effect of using the resulting increase in the cash flow of Company or any of its Subsidiaries to reduce the total indebtedness of Company and its Subsidiaries for money borrowed; or
(xvi) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1. ARTICLE VI
Appears in 1 contract
