Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent: (a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents; (b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof; (c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries; (d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities; (e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation; (f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company; (g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary; (h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice; (i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment; (j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger); (k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice; (l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or (m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 3 contracts
Samples: Merger Agreement (Jevic Transportation Inc), Merger Agreement (JPF Acquisition Corp), Merger Agreement (Yellow Corp)
Conduct of Business of the Company. Except as required set forth in Section 6.01 of the Disclosure Letter and expressly contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the earlier of the Effective TimeTime and the date on which a majority of the Company's directors are designees of Parent or Purchaser, or until the earlier termination of this Agreement, the Company will, will conduct and will cause each of the its Subsidiaries to, to conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, foregoing and except as otherwise required expressly provided in or permitted contemplated by this Agreement or as set forth Agreement, during the period specified in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Timepreceding sentence, without the prior written consent of Parent, the Company will not and will not permit any of its Subsidiaries to:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell, grant options or sellrights to purchase, pledge, or authorize or propose the issuance, reissuance sale, grant of options or sale rights to purchase or pledge of (i) additional shares of capital stock of any classCompany Securities (including any Existing Stock Option) or Subsidiary Securities, or securities convertible into capital stock of grant or accelerate any class, right to convert or exchange any rights, warrants Company Securities or options to acquire any convertible securities or capital stockSubsidiary Securities, other than the issuance of Common Shares pursuant to: (A) the issuable upon exercise of the Existing Stock Options outstanding on and other than as may be provided under the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, Stock Purchase Plan or (ii) any other securities in respect of, in lieu of, of or in substitution for, for Shares outstanding on the date hereof;
(b) acquire or redeem, directly or indirectly, or amend any Company Securities or Subsidiary Securities;
(c) split, combine or reclassify its capital stock or declare, set aside aside, make or pay any dividend or other distribution (whether in cash, capital stock, rights thereto stock or other assets, securities or property or property) on any combination thereof) in respect of any class or series shares of its capital stock (other than between any of cash dividends paid to the Company and any of the by its wholly-owned SubsidiariesSubsidiaries with regard to their capital stock);
(d) split, combine, subdivide, reclassify propose or redeem, purchase adopt any amendment to its Certificate of Incorporation or otherwise acquire, Bylaws (or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiessimilar documents);
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries other than in the ordinary course of business and consistent with past practice, grant any stock related performance or similar awards or bonuses;
(Bf) increases in salary(i) acquire or agree to acquire by merging or consolidating with, wages and benefits granted to officers and employees or by purchasing a substantial portion of the Company assets of, or the Subsidiaries in conjunction with new hiresby any other manner, promotions any business or any corporation, partnership, joint venture, association or other changes in job status in the ordinary 19 23 course of business consistent with past practice, organization or division thereof or (Cii) increases in salaryacquire or agree to acquire, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into lease or manage any assets, other than in the ordinary course of business and consistent with past practice and other than assets that are immaterial to the Company and its Subsidiaries taken as a whole;
(g) other than in the ordinary course of business and consistent with past practice, sell, lease, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets, or stock or other ownership interest in any of its properties or subsidiaries other than (i) increase the compensation or fringe benefits any liens for taxes not yet due and payable or to become payable to its directors, officers or employees (whether from being contested in good faith by appropriate proceedings for which adequate reserves have been provided in the consolidated balance sheet of the Company or any of the Subsidiaries)at December 31, or 1999 and (ii) pay such mechanics and similar liens, if any, as do not materially detract from the value of any benefit not required by of such properties, assets, stock or ownership interests or materially interfere with the present use of any existing plan of such properties or arrangementassets;
(h) make any commitment or enter into, or (iii) grant any severance or termination pay (except pursuant to existing agreementsamend, plans or policies and as required by such agreements, plans or polices)modify, or terminate any contract or agreement material to the Company and its Subsidiaries taken as a whole;
(ivi) enter into (1) incur any employment indebtedness for borrowed money or severance agreement withguarantee any such indebtedness of another Person, issue or sell any director, officer debt securities or warrants or other employee rights to acquire any debt securities of the Company or any of the its Subsidiaries, or (v) establish, adoptguarantee any debt securities of another person, enter into, or amend into any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance "keep well" or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare agreement to maintain any financial statement condition of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, another person or enter into any commitment to do arrangement having the economic effect of any of the foregoing or enter into any material commitment or transaction outside foregoing, except for borrowings under its line of credit for working capital purposes and the ordinary endorsement of checks in the normal course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii2) make any loans, advances or capital contributions to, or investments in, any other person except person, other than to the Company or any direct or indirect wholly owned Subsidiary of the Company and other than travel and entertainment advances to employees in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiarypractice;
(hj) modifyestablish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation stock option, restricted stock, pension, retirement, deferred compensation, employment termination, severance or terminate other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former director, officer and employee;
(k) except as disclosed in the Company SEC Reports and except as may be required as a result of a change in law or in GAAP or a change in order to comply with SEC requirements, change any of its accounting policies or its procedures (including, without limitation, procedures with respect to the Material Contracts payment of accounts payable and collection of accounts receivable);
(l) ensure that it and each of its Subsidiaries shall, use its reasonable best efforts to keep or waive, release cause to be kept its material existing insurance policies (or assign substantial equivalents) in such amounts duly in force until the Effective Time and shall give Parent notice of any rights or claims thereunder, except material change in the ordinary course of business and consistent with past practiceits insurance policies;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, take any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or and warranty of the Company contained herein hereunder inaccurate in any material respect at, or as of any time prior to, the Effective TimeTime or (ii) omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at such time;
(n) enter into any new, or that would materially impair amend any existing, employment, severance, consulting or salary continuation agreements with or for the ability benefit of any officers, directors or employees, or grant any increases in the compensation or benefits to officers, directors and employees (other than normal increases to persons who are not officers or directors in the ordinary course of business consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationCompany); or
(mo) enter into an agreement, contract, commitment agree in writing or arrangement otherwise to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cunningham Graphics International Inc), Merger Agreement (Automatic Data Processing Inc), Agreement and Plan of Merger (Automatic Data Processing Inc)
Conduct of Business of the Company. Except During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by Parent or as otherwise expressly required by this Agreement or Agreement, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and use reasonable best efforts to preserve intact its business organization, rights and properties, keep its properties in good repair and condition, keep available the prior written consent services of Parentits current officers, employees and consultants and preserve its goodwill and its relationships with Persons having business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 5.1 of the Company Disclosure StatementLetter or as expressly required by this Agreement, the Company will shall not, and will shall not permit any of the Subsidiaries to, prior to the Effective Timeits Subsidiaries, without the Parent’s prior written consent of Parentconsent, to:
(a) adopt (i) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for (A) dividends by a wholly owned Subsidiary of the Company to its certificate parent and (B) dividends of incorporation the stock of SpinCo made in accordance with the terms hereof, (ii) purchase, redeem or otherwise acquire any shares of capital stock or other equity interests of the Company or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests, or (iii) except as contemplated by laws Section 3.2(f) of the Company Disclosure Letter with respect to the adjustment to the strike prices of Company Stock Options as a result of the Spin-Off, split, combine, reclassify or comparable organizational documentsotherwise amend the terms of any of its capital stock or other equity interests or any outstanding options, warrants, or rights to acquire any such stock or other equity interests, or issue or authorize the issuance of any securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests;
(b) except for issuances issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue other equity interests or sellany securities convertible into, or authorize the issuance, reissuance exchangeable for or sale of (i) additional exercisable for any such shares of capital stock of any class, or securities convertible into capital stock of any classother equity interests, or any rights, warrants or options to acquire acquire, any convertible securities such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stockstock of the Company on a deferred basis or other rights linked to the value of shares of Company Common Stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof including pursuant to the terms thereof Contracts as in effect on the date hereof or hereof; provided, that the foregoing shall not prohibit the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the Measurement Date in accordance with their terms as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding effect on the date hereof;
(c) declareamend or otherwise change, set aside or pay any dividend authorize or other distribution propose to amend or otherwise change, its certificate of incorporation or by-laws (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiariessimilar organizational documents);
(d) splitdirectly or indirectly acquire or agree to acquire (i) by merging or consolidating with, combinepurchasing a substantial equity interest in or a substantial portion of the assets of, subdivide, reclassify making an investment in or redeem, purchase loan or otherwise acquirecapital contribution to, or propose to redeem or purchase or otherwise acquirein any other manner, any shares of its capital stockcorporation, partnership, association or other business organization or division thereof, (ii) any property or rights therein that would be an Owned Property, a Leased Property or a Concession Property if existing on the date hereof, or (iii) any of assets that are otherwise material to the Company and its other securitiesSubsidiaries;
(e) except for the Royalty Agreement, directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien or otherwise dispose in whole or in part of any of its properties or rights (Aincluding any Owned Property, any Leased Property and any Concession Property) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationinterest therein;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, adopt or enter into any commitment to do any a plan of the foregoing complete or enter into any material commitment partial liquidation, dissolution, restructuring, recapitalization or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companyreorganization;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incurcreate, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable for, or responsible (whether directlyprepay prior to maturity, contingently any Indebtedness, or otherwise) for the obligations of amend, modify or refinance any other person except in the ordinary course of business consistent with past practiceIndebtedness, or (iiiii) make any loans, advances or capital contributions to, or investments in, any other person except Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(h) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto not provided for in the budget set forth on Section 5.1(h) of the Company Disclosure Letter;
(i) (i) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted, unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such items (A) in the ordinary course of business consistent with past practice and except for loanspractice, advances, capital contributions or investments between any wholly-owned Subsidiary and (B) that are not material to the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of its Subsidiaries, or (C) as required by their terms as in effect on the Material Contracts date of this Agreement, (ii) cancel any Indebtedness owed to the Company or any of its Subsidiaries, or (iii) waive, release or assign transfer any rights claims, liabilities or claims thereunderobligations (whether absolute, except in accrued, asserted, unasserted, contingent or otherwise) of material value that are owed to the ordinary course Company or any of business and consistent with past practiceits Subsidiaries;
(j) (i) modify, amend, terminate, cancel or extend any Material Contract (including any Property Lease or Surface Agreement), or (ii) enter into any Contract that if in effect on the date hereof would be a Material Contract, except, in each of clauses (i) and (ii), (A) with respect to any such Contract that will be a Contract solely of the SpinCo Entities after consummation of the Spin-Off and (B) with respect to any modification or amendment that is immaterial in its terms and effect;
(k) enter into any transaction or take any action that, if entered into prior to the date hereof, would be a Related Party Transaction, or amend, waive, modify or terminate any existing Related Party Transaction;
(l) (i) commence any Action (excluding any Action against Parent or Merger Sub with respect to this Agreement or the transactions contemplated hereby), or (ii) compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby, but excluding any such Action filed by the Company against Parent or Merger Sub);
(m) change its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or applicable Law, or revalue any of the accounting methods used by it unless required by GAAPits material assets;
(n) settle or compromise any material liability for Taxes, amend any material Tax Return, make any material Tax election or change or revoke take any material position on any Tax election already madeReturn filed on or after the date of this Agreement or change any method of accounting for Tax purposes;
(o) change its fiscal year;
(i) except with respect to pay increases awarded prior to the date hereof and listed on Section 5.1(p) of the Company Disclosure Letter, adopt, request grant or consent pay to any new material Tax accounting methodcurrent or former director, officer, stockholder, employee, consultant or independent contractor any increase in compensation, bonus or other benefits, or grant or pay to any such Person any type of compensation or benefits not previously paid to such Person, or grant or pay any bonus of any kind to any such Person, (ii) grant or pay to any current or former director, officer, stockholder, employee, consultant or independent contractor any severance, change in control, retention, termination or analogous pay or benefits, or modifications thereto or increases therein, (iii) pay any material Tax accounting method unless benefit or grant or amend any award (including any Company Stock Options, restricted stock, stock appreciation rights, performance units or other stock-based or stock-related awards, or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except as required by to comply with any applicable lawLaw or any Company Plan in effect as of the date hereof, (iv) adopt or enter into any material closing agreementcollective bargaining agreement or other labor union contract, settle (v) take any material Tax claim action to accelerate the vesting, funding or assessment payment of any compensation or consent to benefit under any material Tax claim Company Plan or assessment other analogous Contract or (vi) enter into any waiver Contract that would be a Company Plan if existing as of the statute of limitations for date hereof, or otherwise adopt any such claim new employee benefit or assessmentcompensation plan or arrangement, or amend, modify or terminate any existing Company Plan;
(jq) adopt a plan of complete renew or partial liquidationenter into any non-compete, dissolutionexclusivity, merger, consolidation, restructuring, recapitalization non-solicitation or other reorganization similar agreement that would restrict or limit the operations of the Company or any of the Subsidiaries (other than the Merger)its Subsidiaries;
(kr) payexcept to the extent required by the fiduciary duties of the Company Board under Delaware Law and as otherwise in compliance with Section 5.2, discharge waive any material benefits of, or satisfyagree to modify in any adverse respect, or fail to payenforce, discharge or satisfyconsent to any matter with respect to which its consent is required under, any claimconfidentiality, liability standstill or obligation (contingent similar agreement to which the Company or otherwise), other than in the ordinary course any of business and consistent with past practiceits Subsidiaries is a party;
(ls) take, or agree to commit to take, enter into any action that would or is reasonably likely to result in any new line of the conditions to the Merger set forth in Article VII or any business outside of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationits existing business; or
(mt) enter into an agreement, contract, commitment or arrangement to do authorize any of the foregoingof, or commit, resolve or agree to authorizetake any of, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 3 contracts
Samples: Merger Agreement (Paramount Gold Nevada Corp.), Merger Agreement (Coeur Mining, Inc.), Merger Agreement (Paramount Gold & Silver Corp.)
Conduct of Business of the Company. (a) Except as required expressly contemplated by this Agreement or with Section 4.1 of the prior written consent of ParentCompany Disclosure Letter, during the period from the date of this Agreement to the Effective Time, (i) the Company will, and will cause each of the Subsidiaries to, shall conduct its operations only business in the ordinary course of business and consistent with past practice and will use its reasonable best effortspractice, and will cause each of the Subsidiaries to Company shall use its reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve intact the good will present commercial relationships of those having the Company with all persons with whom it does business relationships with it. Without and (ii) without limiting the generality or effect of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(aA) adopt any amendment amend or propose to amend its certificate Articles of incorporation Incorporation or by laws Bylaws (or comparable organizational documentsgoverning instruments);
(bB) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or deliver, grant, sell, pledge, dispose of or authorize propose to issue, deliver, grant, sell, pledge or dispose of any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, the issuancecapital stock or other securities of the Company including, reissuance but not limited to, stock appreciation rights, phantom stock, any securities convertible into or sale of (i) additional exchangeable for shares of capital stock of any classclass of the Company, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than except for the issuance of Common up to 222,875 Shares pursuant to: (A) to the exercise of Options either incentive or non-qualified stock options, including management stock options, outstanding on the date hereof pursuant to the terms thereof as in effect close of business on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on day immediately preceding the date hereofof this Agreement and listed in Section 2.2 of the Company Disclosure Schedule in accordance with their present terms;
(cC) split, combine or reclassify any shares of its capital stock or declare, pay or set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of any class or series of its capital stock other than between any of (except that the Company may, with prior notice to Parent, pay accrued and any of unpaid dividends through, but not beyond, March 31, 2001 on the wholly-owned Subsidiaries;
(d) splitPreferred Stock), combine, subdivide, reclassify or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire, directly or propose to redeem or purchase or otherwise acquireindirectly, any shares of its capital stock, stock or any of its other securities;
(ea) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into than in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iiiii) make any loans, advances or capital contributions to, or investments in, any other person except (other than customary travel, relocation or business advances to employees); (b) acquire the stock or the assets of, or merge or consolidate with, any other person; (c) voluntarily incur any material liability or obligation (absolute, accrued, contingent or otherwise) other than in the ordinary course of business and in a manner consistent with past practice; or (d) sell, transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge or otherwise dispose of or encumber, any assets or properties, real, personal or mixed material to the Company other than sales of products in the ordinary course of business and in a manner consistent with past practice; (e) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans, advances or capital contributions to, or investments in, any other person (other than in the ordinary course of business consistent with past practice); (f) enter into any contract or agreement other than in the ordinary course of business consistent with past practice; or (g) enter into a commitment to make any single capital expenditure which is in excess of $5,000 or enter into commitments to make capital expenditures (during any two-month period) which are, in the aggregate, in excess of $10,000;
(E) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any shareholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement and set forth in or contemplated by Section 4.1 of the Company Disclosure Schedule, (ii) increases in salaries of employees who are not directors or officers of the Company or Key Employees made in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary(iii) increases in salaries of Key Employees with Parent's prior written consent;
(hF) modifyexcept as may be required as a result of a change in Law or in generally accepted accounting principles, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods practices or principles used by it unless required by GAAP, it;
(G) make any material Tax election election, settle or change or revoke compromise any material federal, state, local or foreign Tax election already madeliability, adopt, request or consent to waive any new material Tax accounting method, change statute of limitations for any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentchange its fiscal year;
(jH) settle or compromise any pending or threatened suit, action or claim which is material or which relates to the transactions contemplated hereby;
(I) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(kJ) pay, discharge or satisfysatisfy any claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than the payment, discharge or satisfaction (a) in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice and (b) of liabilities required to be paid, discharged or satisfied pursuant to the terms of any contract in existence on the date hereof (including, without limitation, benefit plans relating to directors) or entered into in accordance with this Section 4.1;
(K) permit any insurance policy naming the Company as a beneficiary or a loss payable payee to be cancelled or terminated without the prior consent of the Parent, except in the ordinary course of business and consistent with past practice;; or
(lL) take, or offer or propose to take, or agree to commit to taketake in writing or otherwise, any of the actions described in Section 4.1(a) or any action that which would make any of the representations or is reasonably likely to warranties of the Company contained in this Agreement untrue and incorrect as of the date when made if such action had then been taken, or would result in any of the conditions Conditions not being satisfied.
(M) pay the legal fees or other expenses of the Preferred Stockholder in connection with the transactions contemplated by this Agreement or otherwise or reimburse the Preferred Stockholder for such fees or expenses in an aggregate amount in excess of $50,000.
(b) The Company shall use its best efforts to the Merger set forth comply in Article VII all material respects with all Laws applicable to it or any of its properties, assets or business and maintain in full force and effect all the conditions to the Offer not being satisfiedCompany Permits necessary for, or would make any representation or warranty of the Company contained herein inaccurate in any otherwise material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24business.
Appears in 2 contracts
Samples: Merger Agreement (Saugatuck Capital Co LTD Partnership Iii), Merger Agreement (Network Six Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of Parentas set forth on Schedule 6.1, during the period from the date of this Agreement to the Effective Timeconsummation of the Offer and, if Parent has made a request therefor pursuant to Section 1.4 hereof, until its Designated Directors (as defined in Section 8.4 hereof) shall constitute in their entirety a majority of the Board, the Company willand its Subsidiaries will each conduct its operations according to its ordinary course of business, consistent with past practice, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its all reasonable best efforts, and will cause each of the Subsidiaries efforts to use its reasonable best efforts, to (i) preserve intact the its business organization of the Company organization, (ii) maintain its material rights and each of the Subsidiariesfranchises, to (iii) keep available the services of its and their present officers and key employees, and (iv) keep in full force and effect insurance comparable in amount and scope of coverage to preserve that maintained as of the good will of those having business relationships with itdate hereof (collectively, the "ORDINARY COURSE OBLIGATIONS"). Without limiting the generality of and in addition to the foregoing, and except as set forth on Schedule 6.1 or otherwise required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toAgreement, prior to the Effective Timetime specified in the preceding sentence, neither the Company nor any of its Subsidiaries will, without the prior written consent of Parent:
(a) adopt any amendment to amend its certificate of incorporation or by charter, by-laws or comparable organizational other governing documents;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, deliver or authorize agree or commit to issue, sell or deliver (whether through the issuanceissuance or granting of options, reissuance warrants, commitments, subscriptions, rights to purchase or sale of (iotherwise) additional shares of capital any stock of any class, class or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities (except by the Company in respect ofconnection with Stock Options, in lieu of, Warrants and the POR) or in substitution for, Shares amend any of the terms of any such securities 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 (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of any class or series of its capital stock other than between or redeem or otherwise acquire any of the Company and its securities or any securities of the wholly-owned its Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation pledge or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any otherwise encumber shares of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee capital stock of the Company or any of the its Subsidiaries, or ; (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (iii) incur, assume or pre-pay prepay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 2 contracts
Samples: Merger Agreement (Marriott International Inc), Merger Agreement (Forum Group Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parentexpressly provided for herein, during the period from the date of this Agreement to the Effective Time, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct act and carry on its operations only business in the ordinary course of business consistent with past practice and will and, to the extent consistent therewith, use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its current business organization of the Company and each of the Subsidiariesorganizations, to keep available the services of its and their present current key officers and employees, employees and to preserve the good will goodwill of those having engaged in material business relationships with itthe Company. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statementexpressly provided herein, the Company will shall not, and will shall not permit any of the its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt except as set forth in Section 5.01(a) of the Disclosure Schedule, (i) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its outstanding capital stock (other than, with respect to a Subsidiary of the Company, to its certificate corporate parent), (ii) split, combine or reclassify any of incorporation or by laws or comparable organizational documents;
(b) except for issuances of its outstanding capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, issue or authorize the issuanceissuance of any other securities in respect of, reissuance in lieu of or sale of (i) additional in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities such shares, except, in the case of this clause (iii), for the acquisition of Shares from holders of Stock Options in full or capital stock, other than the issuance partial payment of Common Shares pursuant to: (A) the exercise price or any Taxes payable by such holder upon exercise of Stock Options outstanding on the date hereof pursuant to the extent required under the terms thereof of such Stock Options as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(cb) declare, except as set aside or pay any dividend or other distribution (whether forth in cash, capital stock, rights thereto or other assets, securities or property or any combination thereofSection 5.01(b) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) splitDisclosure Schedule, combineissue, subdividesell, reclassify or redeemgrant, purchase pledge or otherwise acquire, or propose to redeem or purchase or otherwise acquire, encumber any shares of its capital stock, any other voting securities or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers securities convertible into or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practiceexchangeable for, or (C) increases in salaryany rights, wages and benefits warrants or options to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practiceacquire, any such shares, voting securities or convertible or exchangeable securities, other than (i) increase upon the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from exercise of Vested Stock Options outstanding on the Company or any date of the Subsidiaries), or this Agreement and (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and the issuance of Shares as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee the terms of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and Employee Stock Ownership Plan consistent with past practice;
(ic) change any amend its certificate of the accounting methods used by it unless required by GAAPincorporation, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization by-laws or other reorganization of the Company comparable charter or any of the Subsidiaries (other than the Merger)organizational documents;
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 2 contracts
Samples: Merger Agreement (Acnielsen Corp), Agreement and Plan of Merger (Vnu N V)
Conduct of Business of the Company. Except as expressly required by this Agreement or with the prior written consent of ParentPurchaser, during the period from the date of this Agreement to the earlier of (i) the date of termination of this Agreement or (ii) the Effective Time, the Company willshall, and will shall cause each of the its Subsidiaries to, (x) conduct its operations only in the ordinary course of business consistent with past practice and will (y) use its all commercially reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available including the services of its key employees and their present officers the goodwill of its customers, lenders, distributors, suppliers, manufacturers, regulators and employeesother Persons with whom it has business relationships, and except to preserve the good will of those having business relationships extent the Purchaser has indicated in writing to the Company that any such person shall not have an ongoing role with itParent or the Surviving Corporation following the Closing. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without with the prior written consent of ParentPurchaser, from the date of this Agreement to the earlier of (i) the date of termination of this Agreement or (ii) the Effective Time, the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions:
(a) make or adopt any amendment changes to its certificate of incorporation or by laws or comparable organizational documentsthe Company Organizational Documents;
(b) except for issuances make, declare, set aside, or pay any dividend or distribution on any shares of its capital stock of the Subsidiaries or otherwise make any payments to the Company or its stockholders in their capacity as such, other than dividends paid by a wholly-owned Subsidiary, issue, reissue or sell, or authorize Subsidiary to its parent corporation in the issuance, reissuance or sale ordinary course of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofbusiness;
(c) declare(i) adjust, set aside split, combine or pay any dividend reclassify or other distribution (whether in cash, otherwise amend the terms of its capital stock, rights thereto or other assets(ii) repurchase, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase purchase, acquire, encumber, pledge, dispose of or otherwise acquiretransfer, directly or propose to redeem or purchase or otherwise acquireindirectly, any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or other rights, or offer to do the same, (iii) authorize for issuance, issue, grant, deliver or sell any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or rights (which term, for purposes of this Agreement, shall be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights) (other than pursuant to the exercise of the Stock Options outstanding as of the date of this Agreement in accordance with their terms as of the date of this Agreement), (iv) enter into any Contract, understanding or arrangement with respect to the sale, voting, pledge, encumbrance, disposition, acquisition, transfer, registration or repurchase of its capital stock or such securities or other securities;
rights, except in each case as permitted under Section 6.1(d), or (ev) except register for (A) increases in salarysale, wages and benefits of non-executive officers resale or employees other transfer any Shares under the Securities Act on behalf of the Company or any other Person;
(d) except (A) as required by applicable Law or pursuant to the Subsidiaries terms of any Company Benefit Plan, or (B) for ordinary increases of no more than 5% of an employee’s annual base salary (that do not apply to the Company’s officers, directors or key employees) in the ordinary course of business and consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees practices of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practiceCompany, (i) increase the compensation or fringe benefits salary payable or to become payable to to, or make any payment not otherwise due to, any of its past or present directors, officers or employees (whether from the Company or any of the Subsidiaries)officers, employees, or other service providers, (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay to any of its past or present directors, officers, employees or other service providers, (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iviii) enter into any employment new employment, consulting or severance agreement with, any director, officer or other employee of the Company or with any of the Subsidiariesits past or present directors, officers, employees or hire any new employees, (viv) establish, adopt, enter into, amend or amend take any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance action to accelerate rights under any Company Benefit Plans or other employee benefit any plan, agreement, program, policy, trust, fundfund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, policy (v) contribute any funds to a “rabbi trust” or arrangement for the benefit similar grantor trust, (vi) change any actuarial assumptions currently being utilized with respect to Company Benefit Plans, (vii) grant any equity or welfare equity-based awards to any of any its past or present directors, officers officers, employees or current other service providers; or former employees(viii) amend, except modify or reprice any outstanding equity or equity-based award;
(e) announce, implement or effect any material reduction in each case to labor force, lay-off, early retirement program, severance program or other program or effort concerning the extent required by applicable law termination of employment of employees of the Company or regulationany of the Company’s Subsidiaries other than routine employee terminations;
(f) acquireenter into any agreement or arrangement that limits or otherwise restricts the Company, any of the Company’s Subsidiaries, or upon completion of the transactions contemplated by this Agreement, Parent or its Subsidiaries or any successor thereto from engaging or competing in any line of business or in any location;
(g) take any action which would restrict or impair the ability of Parent or Purchaser to vote, or otherwise to exercise the rights and receive the benefits of a stockholder with respect to, Shares acquired or controlled or to be acquired or controlled by Parent or Purchaser;
(h) merge or consolidate the Company or any of its Subsidiaries with any Person, or alter through merger, liquidation, reorganization, restructuring or in any other fashion, the corporate structure or ownership of any Subsidiary of the Company;
(i) sell, lease, mortgage, encumber exclusively license or abandon or otherwise dispose of any assets (tangible or intangible) (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any sales of the foregoing or enter into any material commitment or transaction outside Company’s products in the ordinary course of business) or securities, including by merger, consolidation, asset sale or other business consistent with past practice combination (including formation of a Company Joint Venture);
(j) mortgage or pledge any of its assets (tangible or intangible), or create, assume or suffer to exist any new liens thereupon;
(k) make any acquisition, by purchase or other acquisition of stock or other equity interests, or by merger, consolidation or other business combination (including formation of a Company Joint Venture), or make any property transfers or purchases of any property or assets, to or from any Person (other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company);
(gl) enter into, renew, extend, amend or terminate any Contract that is or would be material to the Company and its Subsidiaries, taken as a whole;
(im) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse guarantee or otherwise become liable or responsible prepay any indebtedness for borrowed money (whether directly, contingently or otherwise) for including the obligations issuance of any other person except in the ordinary course of business consistent with past practice, or debt security);
(iiin) make any loans, advances or capital contributions to, acquisitions of or investments in, any other person except Person, other than loans, advances or capital contributions to or among wholly-owned Subsidiaries;
(o) authorize or make any capital expenditure, other than capital expenditures that are not, in the aggregate, in excess of $100,000;
(p) fail to use commercially reasonable efforts to maintain existing insurance policies or comparable replacement policies to the extent available for a reasonable cost;
(q) change its financial accounting policies or procedures in effect as of December 31, 2007 in any material respect, other than as required by Law or GAAP, or write up, write down or write off the book value of, or otherwise revalue, any assets of the Company and its Subsidiaries, other than (i) in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company (ii) as may be required by Law or another wholly-owned SubsidiaryGAAP;
(hr) modifyother than shareholder litigation settled in accordance with Section 6.15 hereof, amend or terminate any of the Material Contracts or waive, release release, assign, settle or assign compromise any rights Legal Actions, other than waivers, releases, assignments, settlements or claims thereunder, except compromises in the ordinary course of business and consistent with past practicepractice that involve only the payment of monetary damages not in excess of $50,000 individually or $250,000 in the aggregate, in any case without the imposition of equitable relief or any restrictions on the business and operations of, on, or the admission of any wrongdoing by, the Company or any of its Subsidiaries;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(js) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries its Subsidiaries;
(t) settle or compromise any Tax audit, make or change any material Tax election or file any material amendment to a Tax Return, change any annual Tax accounting period or adopt or change any Tax accounting method, enter into any material closing agreement, or surrender any right to claim a refund of Taxes;
(u) enter into, amend, waive or terminate (other than the Merger)terminations in accordance with their terms) any new Affiliate Transaction;
(kv) pay, discharge or satisfy, or fail to pay, discharge or satisfy, disclose any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practiceits material trade secrets;
(lw) take, or agree to commit to take, take any action that would or is reasonably likely be expected to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the have a Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationMaterial Adverse Effect; or
(mx) enter into an agreement, contract, commitment agree or arrangement commit to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (Barrier Therapeutics Inc), Merger Agreement (Stiefel Laboratories, Inc.)
Conduct of Business of the Company. Except During the period from the date of this Agreement to the Effective Time, except as required consented to in writing in advance by Parent or as otherwise specifically contemplated by this Agreement or Agreement, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and use reasonable best efforts to preserve intact its business and its present relationships with customers, suppliers, landlords and other persons with which it has material business relations, and to keep available the prior written consent services of Parentits current officers. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 5.1 of the Company Disclosure StatementLetter or as specifically contemplated by this Agreement, the Company will shall not, and will shall not permit any of the its Subsidiaries to, prior to the Effective Time, without the Parent’s prior written consent of Parent:(such consent not to be unreasonably withheld, delayed or conditioned):
(a) adopt (i) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned Subsidiary of the Company to its certificate parent, (ii) purchase, redeem or otherwise acquire shares of incorporation capital stock or other equity interests of the Company or its Subsidiaries or any options, warrants or rights to acquire any such shares or other equity interests (except as permitted by laws Section 5.1(b)), or comparable organizational documents(iii) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests (except as permitted by Section 5.1(b));
(b) except for issuances issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue other equity interests or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of into, exchangeable for or exercisable for any classsuch shares or other equity interests, or any rights, warrants or options to acquire any convertible securities such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stockstock of the Company on a deferred basis or other rights linked to the value of Shares, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof including pursuant to the terms thereof Contracts as in effect on the date hereof (other than (i) grants of rights or options to acquire Shares legally required to be granted pursuant to the ESPP as modified in effect on the date of this Agreement, to the extent set forth in Section 5.1(b) of the Disclosure Letter, (ii) the issuance of Shares upon the exercise of Company Stock Options and the vesting of RSUs outstanding on the Measurement Date in accordance with their terms or (iii) the purchase, redemption or other acquisition of Shares or other equity interests of the Company from former employees, directors and consultants pursuant to any Contract or Company Equity Plan in accordance with its terms as contemplated of the date hereof providing for the repurchase of shares in connection with any termination of services to the Company or any of its Subsidiaries);
(c) amend or otherwise change its articles of incorporation or bylaws or similar organizational documents;
(d) directly or indirectly acquire or agree to acquire (i) by Section 2.10merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to, or (B) the conversion of Class A Common Sharesin any other manner, any corporation, partnership, association or other business organization or division thereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of assets that are otherwise material to the Company and any its Subsidiaries, taken as a whole, other than inventory acquired in the ordinary course of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiesbusiness consistent with past practice;
(e) directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien or otherwise dispose in whole or in part of any properties, assets or rights or any interest therein that are material to the Company and its Subsidiaries, taken as a whole, except for (A) increases in salary, wages and benefits sales of non-executive officers or employees of the Company inventory or the Subsidiaries disposition of used or excess equipment, in each case in the ordinary course of business consistent with past practice;
(f) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(g) (i) other than for borrowings under the Company’s revolving credit facility in the ordinary course of business consistent with past practice, (B) increases in salaryincur, wages and benefits granted to officers and employees of the Company create, assume or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practiceotherwise become liable for, or (C) increases in salaryprepay, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practiceany Indebtedness, (i) increase the compensation or fringe benefits payable amend, modify or to become payable to its directors, officers or employees (whether from the Company or refinance any of the Subsidiaries)Indebtedness, or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(h) incur or commit to incur, in any fiscal quarter of the Company, any capital expenditures other than (i) capital expenditures provided for in the capital expenditure budget for such quarter set forth in Section 5.1 of the Company Disclosure Letter (provided, that, if the budgeted amount set forth for any quarter is not spent in full in such quarter (including a fiscal quarter preceding the date of this Agreement), the unused amount shall roll-forward to the following quarter and subsequent quarters until used) and (ii) additional capital expenditures of less than $1,000,000 in the aggregate;
(i) (i) pay, discharge, settle or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted, unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction of any such claims, liabilities or obligations in the ordinary course of business consistent with past practice and except for loansor as required by their terms (this paragraph (i)(i) does not relate to Actions, advances, capital contributions which are the subject of paragraph (k) below) or investments between (ii) cancel any wholly-owned Subsidiary and material Indebtedness owed to the Company or another wholly-owned Subsidiaryany of its Subsidiaries by a third Person;
(hj) (i) modify, amend amend, terminate, cancel or terminate extend any Material Contract or (ii) enter into any Contract that if in effect on the date hereof would be a Material Contract;
(k) compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than compromises, settlements or agreements (i) of Actions that do not relate to this Agreement or the Material Contracts or waivetransactions contemplated hereby, release or assign any rights or claims thereunder, except (ii) that are made in the ordinary course of business and consistent with past practice, and (iii) that involve only the payment of money damages of less than $1,000,000 (for any Action individually, and in the aggregate for all related Actions), without the imposition of any equitable relief on, or the admission of wrongdoing by, the Company;
(il) change its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or applicable Law or by Section 5.14, or revalue any of the accounting methods used by it unless its material assets, except insofar as required by GAAP;
(m) except as required by Section 5.14, settle or compromise any material liability for Taxes, amend any material Tax Return except as required by applicable Law, make any material Tax election on or after the date of this Agreement or change any method of accounting for Tax purposes;
(n) change its fiscal year;
(i) grant any current or revoke former director, officer, employee or independent contractor any increase in compensation, bonus or other benefits, or grant any type of compensation or benefits to any current or former director, officer, employee or independent contractor not previously receiving or entitled to receive such type of compensation or benefit (except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof, or for pay or fee increases made in the ordinary course of business consistent with past practice (other than with respect to officers of the Company or any individual receiving base pay in excess of $100,000 per year)), (ii) grant or pay to any current or former director, officer, employee or independent contractor any severance, change in control or termination pay, or modifications thereto or increases therein, except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof, (iii) grant or amend in any material Tax election already maderespect any equity or equity-based award (including in respect of stock options, adoptstock appreciation rights, request performance units, restricted stock or consent other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof or as may be required to comply with this Agreement, (iv) adopt or enter into any collective bargaining agreement or other labor union contract, (v) take any action to accelerate the vesting, funding or payment of any compensation or benefit under any Company Plan, any agreement issued thereunder, or any other Contract, except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof, or as may be required to implement the actions contemplated by this Agreement, including Section 2.2, or (vi) adopt any new material Tax accounting methodemployee benefit or compensation plan or arrangement or any agreement thereunder, change or amend or modify in any material Tax accounting method unless respect any existing Company Plan or any agreement thereunder, in each case for the benefit of any current or former director, officer, employee or independent contractor, other than as required by applicable lawLaw; provided, that nothing in clause (i), (ii) or (vi) shall restrict the Company from taking such actions in the ordinary course of business consistent with past practice in connection with new hires of employees who are not directors or officers and who receive base pay of less than $100,000 per year;
(p) renew or enter into any material closing non-compete, exclusivity, non-solicitation or similar agreement, settle in each case that would restrict or limit, in any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of respect, the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization operations of the Company or any of the Subsidiaries (other than the Merger)its Subsidiaries;
(kq) pay, discharge or satisfy, or fail to pay, discharge or satisfy, enter into any claim, liability or obligation (contingent or otherwise), other than in the ordinary course new line of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any outside of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationits existing business; or
(mr) enter into an agreement, contract, commitment or arrangement to do authorize any of the foregoingof, or commit, resolve or agree to authorizetake any of, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective TimeAcceptance Date, the Company will, will and will cause each of the Subsidiaries to, to conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itbusiness. Without limiting the generality of to the foregoing, and except as otherwise required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective TimeAcceptance Date, without the prior written consent of Parent, not to be unreasonably withheld:
(a) adopt any amendment to its certificate of incorporation charter or by by-laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, sell or authorize the issuance, reissuance or sale of (i) additional shares (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) of capital stock of any class, or securities shares convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities shares or capital stock, other than the issuance of Common Shares pursuant to: (A) to the conversion or exercise of Options Options, nonstatutory stock options, warrants or the Series B Stock outstanding on the date hereof of this Agreement or pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofStock Option Agreement;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities shares or property or any combination thereof) in respect of any class or series of its capital stock other than stock, except for (i) regular quarterly dividends payable on the Series B Stock with usual record and payment dates for such dividends and (ii) dividends between any of the Company and any of the Subsidiary which is wholly-owned Subsidiariesby the Company;
(d) split, combine, subdivide, reclassify or directly or indirectly redeem, purchase or otherwise acquire, recapitalize or reclassify, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases shares or liquidate in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually whole or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companypart;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 2 contracts
Samples: Merger Agreement (Ifs Ab), Merger Agreement (Effective Management Systems Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of ParentThe Company shall, during the period from the date of this Agreement to until the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only business in the ordinary course of business consistent with past practice and will practice, and, to the extent consistent therewith, the Company shall, use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve substantially intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present current officers and employees, and to preserve the good will of those having its business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise required or permitted expressly contemplated by this Agreement or as set forth in on Section 6.01 5.01 of the Company Disclosure StatementLetter or as required by applicable Law, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective TimeSHALL NOT, without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld or delayed):
(a) adopt any amendment Shall not: amend or propose to amend its certificate of incorporation or by by-laws (or other comparable organizational documents);
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of Shall not: (i) additional shares of capital stock of split, combine or reclassify any classCompany Securities or Company Subsidiary Securities, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect ofrepurchase, in lieu ofredeem or otherwise acquire, or in substitution foroffer to repurchase, Shares outstanding on the date hereof;
redeem or otherwise acquire, any Company Securities or Company Subsidiary Securities, (ciii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereofotherwise) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquireof, or propose enter into any Contract with respect to redeem or purchase or otherwise acquirethe voting of, any shares of its capital stock, stock (other than dividends from its direct or any of its other securitiesindirect wholly-owned Subsidiary);
(ec) except for Shall not: issue, sell, pledge, dispose of or encumber any Company Securities or Company Subsidiary Securities, other than (Ai) increases the issuance of shares of Company Common Stock upon the exercise of any Company Equity Award outstanding as of the date of this Agreement in salaryaccordance with its terms, wages (ii) the issuance of shares of Company Common Stock in respect of other equity compensation awards outstanding under Company Stock Plans as of the date of this Agreement in accordance with their terms, (iii) the issuance of Company Equity Awards and benefits the issuance of non-shares of Company Common Stock upon the exercise of such Company Equity Awards (other than directors or executive officers or employees of the Company or the Subsidiaries Company) in accordance with their terms in the ordinary course of business consistent with past practice, (Biv) increases the issuance of shares of Company Common Stock upon exercise of any Warrant that is outstanding as of the date of this Agreement, or (v) the issuance of shares of Common Stock upon the conversion of Convertible Notes;
(d) Shall not: except as required by applicable Law or by any Company Employee Plan or Contract in salary, wages and benefits granted to officers and employees effect as of the date of this Agreement,
(i) increase the compensation payable or that could become payable by the Company or the Subsidiaries in conjunction with new hiresits Subsidiary to directors, promotions officers or employees, other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) than increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into compensation made in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or .
(ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment new or severance agreement withamend in any material respect, any directorexisting employment, severance, retention or change in control agreement with any of its past or present officers or employees.
(iii) promote any officers or employees, except in connection with the Company's annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or other employee of the Company or any of the Subsidiaries, or employee.
(viv) establish, adopt, enter into, amend, terminate, exercise any discretion under, or amend take any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance action to accelerate rights under any Company Employee Plans or other employee benefit any plan, agreement, program, policy, trust, fundfund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement, policy or arrangement for the benefit or welfare of make any directorscontribution to any Company Employee Plan, officers or current or former employees, except in each case to the extent other than contributions required by applicable law Law, the terms of such Company Employee Plans as in effect on the date hereof or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt are made in the ordinary course of business consistent with past practice under existing lines of creditpractice;
(e) Shall not: (i) transfer, (ii) assumelicense, guaranteesell, endorse lease or otherwise become liable or responsible dispose of any assets (whether directlyby way of merger, contingently consolidation, sale of stock or assets, or otherwise) for ), including the obligations capital stock or other equity interests in any Subsidiary of any other person except the Company, provided that the foregoing shall not prohibit the Company and from transferring, licensing, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jii) adopt or effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization;
(f) Shall not: repurchase, prepay or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of the Subsidiaries its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other Contract to maintain any financial statement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any arrangement having the Mergereconomic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practice;
(g) Shall not: enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to material Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Company Material Contract or Lease with respect to material Real Estate hereunder;
(h) Shall not: institute, settle or compromise any Legal Actions pending or threatened before any arbitrator, court or other Governmental Entity involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding FIFTY THOUSAND DOLLARS (“$50,000”) in the aggregate, other than (i) any Legal Action brought against Parent or Merger Subsidiary arising out of a breach or alleged breach of this Agreement by Parent or Merger Subsidiary, and (ii) the settlement of claims, liabilities or obligations reserved against on the most recent balance sheet of the Company included in the Company SEC Documents; provided that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company's business; (maybe add law suit reference)
(i) Shall not: make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law;
(j) Shall not: (i) settle or compromise any material Tax claim, audit or assessment, (ii) make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(k) payShall not: enter into any material agreement, discharge agreement in principle, letter of intent, memorandum of understanding or satisfysimilar Contract with respect to any joint venture, strategic partnership or alliance;
(l) Shall not: except in connection with actions permitted by Section 5.04 hereof, take any action to exempt any Person from, or fail to pay, discharge or satisfymake any acquisition of securities of the Company by any Person not subject to, any claim, liability state takeover statute or obligation (contingent similar statute or regulation that applies to Company with respect to a Takeover Proposal or otherwise, including the restrictions on "business combinations" set forth in Section 78.378 to 78.379 of the NRSC, except for Parent, Merger Subsidiary or any of their respective Subsidiaries or Affiliates, or the transactions contemplated by this Agreement;
(m) Shall not: abandon, encumber, convey title (in whole or in part), exclusively license or grant any right or other licenses to Company IP, other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 2 contracts
Samples: Merger Agreement (Core Resource Management, Inc.), Merger Agreement (Nitro Petroleum Inc.)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to the Effective Time, except as specifically contemplated by this Agreement (including matters specifically identified in Section 6.3 of the Disclosure Schedule) or as otherwise approved in writing by Parent or Purchaser, the Company willshall conduct, and will it shall cause each of the its Subsidiaries toto conduct, conduct its operations only or their businesses in the ordinary course of business and consistent with past practice and will use its reasonable best effortspractice, subject to the limitations contained in this Agreement, and will the Company shall, and it shall cause each of the its Subsidiaries to to, use its or their reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those having business maintain satisfactory relationships with itall Persons with which the Company has significant business relations. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement, after the date of this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, neither the Company nor any of its Subsidiaries will, without the prior written consent of Parent:Purchaser: 20
(ai) adopt any amendment amend or propose to amend its certificate Articles of incorporation Organization or by laws Bylaws (or comparable organizational documents;
governing instruments); (bii) except authorize for issuances issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, the capital stock or other securities of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue any of its Subsidiaries including any securities convertible into or sell, or authorize the issuance, reissuance or sale of (i) additional exchangeable for shares of capital stock of any classclass of the Company or any of its Subsidiaries, or securities convertible enter into capital stock any agreement, understanding or arrangement with respect to the purchase or voting of any class, or any rights, warrants or options to acquire any convertible securities or shares of its capital stock, other than except for the issuance of Common Shares pursuant to: (A) to the exercise of Options or the conversion of the Subordinated Notes outstanding on the date hereof pursuant of this Agreement, in accordance with their present terms, and issuances of up to 120,000 Shares and options under the terms thereof as ESPP to employees in effect on the date hereof ordinary course of business; (iii) split, combine or as modified as contemplated by Section 2.10reclassify any shares of its capital stock, make any other changes in its capital structure, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, pay or set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of any class or series of its capital stock stock, other than between any of dividends or distributions to the Company and any of or a Subsidiary wholly owned by the wholly-owned Subsidiaries;
(d) splitCompany, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, acquire or propose offer to redeem or purchase or otherwise acquire, acquire any shares of its capital stock, stock or any of its other securities;, except for the repurchase of shares of common stock from employees, consultants or directors of the Company upon termination of their relationship with the Company in accordance with existing contractual rights or obligations of repurchase; (iv)
(ea) except for debt (Aincluding, but not limited to, obligations in respect of capital leases) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, 7,000,000 per month or $30,000,000 in the case of rolling stockaggregate for all entities combined, or $3.0 million in the case of other assets or securitiescreate, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume long-term debt or pre-pay debt obligations in the ordinary course respect of business consistent with past practice under existing lines of credit, capital leases; (iib) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any other person Person, except for obligations of the Company or any wholly owned Subsidiary of the Company in the ordinary course of business consistent with past practice, ; (c) make any capital expenditures other than in the ordinary course in amounts not to exceed $7,000,000 per month or $30,000,000 in the aggregate; (iiid) or make any loans, advances or capital contributions to, or investments in, any other person except Person (other than customary relocation loans to employees made in the ordinary course of business consistent with past practice and practice); or (e) acquire the stock or substantially all the assets of, or merge or consolidate with, any other Person; (v) sell, transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge or otherwise dispose of or encumber, any material assets or properties (including Intellectual Property), real, personal or mixed (except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(hi) modify, amend or terminate any sales of the Material Contracts or waive, release or assign any rights or claims thereunder, except assets in the ordinary course of business and in a manner consistent with past practice;
, (iii) change disposition of obsolete or worthless assets and (iii) encumbrances on assets to secure purchase money financings of equipment and capital improvements); (vi) (A) increase the compensation of any of its or their directors, officers or key employees, except pursuant to the accounting methods used by it unless required by GAAPterms of agreements or plans currently in effect; (B) pay or agree to pay any pension, make retirement or other employee benefit provided in any material Tax election existing plan, agreement or change or revoke any material Tax election already made, adopt, request or consent arrangement to any new material Tax accounting methoddirector, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim officer or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than key employee except in the ordinary course of business and consistent with past practice;
; (lC) takecommit, other than pursuant to any existing collective bargaining agreement, to any additional pension, profit sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or agree to commit to takeany employment or consulting agreement with or for the benefit of any director, any action that would officer or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII key employee, whether past or any of the conditions to the Offer not being satisfiedpresent; (D) amend, or would make any representation or warranty of the Company contained herein inaccurate in any material respect atrespect, any such plan, agreement or arrangement; or (E) enter into, adopt or amend any employee benefit plans or employment or severance agreement, or as (except for normal increases in the ordinary and usual course of business for employees with annual base cash compensation of less than $80,000) increase in any manner the compensation of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationemployees; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 2421
Appears in 2 contracts
Samples: Merger Agreement (Gte Corp), Agreement and Plan of Merger (BBN Corp)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to until the earlier of the termination of this Agreement (in accordance with its terms) or the Effective Time, the Company willshall, and will cause each except as required by applicable Law, or with the prior written consent of the Subsidiaries toParent (which consent shall not be unreasonably withheld, conditioned, or delayed), use its reasonable best efforts to conduct its operations only business in all material respects in the ordinary course of business business, and, to the extent consistent with past practice and will therewith, the Company shall use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve substantially intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present current officers and employees, and to preserve the good will of those its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise required expressly permitted or permitted contemplated by this Agreement or Agreement, as set forth in Section 6.01 5.01 of the Company Disclosure StatementLetter, or as required by applicable Law, the Company will shall not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned, or delayed):
(a) adopt any amendment amend or propose to amend its certificate of incorporation or by laws or comparable organizational documentsCharter Documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any classsplit, combine, or securities convertible into capital stock of reclassify any classCompany Securities, (ii) repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem, or otherwise acquire, any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10Company Securities, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ciii) declare, set aside aside, or pay any dividend or other distribution (whether in cash, capital stock, rights thereto property, or other assets, securities or property or any combination thereofotherwise) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquireof, or propose enter into any Contract with respect to redeem or purchase or otherwise acquirethe voting of, any shares of its capital stock;
(c) issue, sell, pledge, dispose of, or encumber any Company Securities, other than the issuance of shares of Company Common Stock upon the exercise of any Company Equity Award outstanding as of the date of this Agreement in accordance with its other securitiesterms;
(d) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(e) except repurchase, prepay, or incur any indebtedness for (A) increases in salaryborrowed money or guarantee any such indebtedness of another Person, wages and benefits of non-executive officers issue or employees sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Company Company, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person or enter into any arrangement having the Subsidiaries economic effect of any of the foregoing, other than in connection with the financing of ordinary course of business trade payables consistent with past practice;
(f) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law;
(g) (i) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Company Balance Sheet (or most recent consolidated balance sheet included in the Company SEC Documents), (Bii) increases make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in salarywriting any right to claim a material Tax refund, wages and benefits granted offset or other reduction in Tax liability or consent to officers and employees any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company;
(h) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar Contract with respect to any joint venture, strategic partnership, or alliance;
(i) except in connection with actions permitted by Section 5.04 hereof, take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company with respect to a Takeover Proposal or otherwise, including the restrictions on “business combinations” set forth in Section 203 of the DGCL, except for Parent, Merger Sub, or any of their respective Subsidiaries or Affiliates, or the Subsidiaries transactions contemplated by this Agreement;
(j) abandon, allow to lapse, sell, assign, transfer, grant any security interest in conjunction with new hires, promotions otherwise encumber or other changes in job status in the ordinary 19 23 course dispose of business consistent with past practiceany material Company IP, or (C) increases in salary, wages and benefits grant any right or license to employees of the any material Company IP other than pursuant to collective bargaining agreements non-exclusive licenses entered into in the ordinary course of business consistent with past practice;
(k) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(il) increase the compensation engage in any transaction with, or fringe benefits payable enter into any agreement, arrangement or to become payable to its directorsunderstanding with, officers or employees (whether from any Affiliate of the Company or other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC;
(m) adopt or implement any of the Subsidiaries), or (ii) pay any benefit not required by any existing stockholder rights plan or similar arrangement, or ; or
(iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (ivn) enter into any employment agreement that restricts the ability of the Company to engage or severance compete in any line of business or that obligates the Company to grant exclusive or preferential rights or “most favored nation” status to any Person, or enter into any agreement with, any director, officer or other employee that restricts the ability of the Company or any of the Subsidiaries, or (v) establish, adopt, its Subsidiaries to enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare a new line of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationbusiness; or
(mo) enter into an agreement, contract, commitment agree or arrangement commit to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (Theralink Technologies, Inc.), Merger Agreement (IMAC Holdings, Inc.)
Conduct of Business of the Company. Except as expressly required or expressly contemplated by this Agreement, as required by this Agreement applicable Law, as approved in writing by ParentCo (which approval shall not be unreasonably withheld or with delayed from the prior written consent perspective of ParentParentCo) or as set forth in Section 5.1 of the Company Disclosure Letter, during the period from the date of this Agreement to through the Effective Time, the Company will, and will cause each of the its Subsidiaries to, (x) conduct its operations only in the ordinary course of business consistent with past practice in all material respects and will (y) use its commercially reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available including the services of its key employees and their present officers and employeesthe goodwill of its customers, lenders, dealers, franchisees, suppliers, and to preserve the good will of those having other Persons with whom it has material business relationships with itrelationships. Without limiting the generality of the foregoing, and except with the prior written consent of ParentCo (which consent shall not be unreasonably withheld or delayed from the perspective of ParentCo), as otherwise expressly required or permitted expressly contemplated by this Agreement Agreement, as required by applicable Law or as set forth in Section 6.01 5.1 of the Company Disclosure StatementLetter, from the date of this Agreement through the Effective Time, the Company will not, and will cause each of its Subsidiaries not permit to, take any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parentfollowing actions:
(a) propose or adopt any amendment changes to its certificate of incorporation or by laws or comparable organizational documentsthe Company Organizational Documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiarymake, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside aside, or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, on any shares of its capital stock, or any other than dividends paid by a wholly owned Subsidiary to its parent corporation in the ordinary course of its other securitiesbusiness; provided that the Company may declare and pay regular quarterly dividends, in each case not to exceed $0.34 per Share, consistent with past practice as to timing;
(ec) (i) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (ii) repurchase, redeem, purchase, acquire, encumber, or pledge, directly or indirectly, any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock, other than in connection with the cashless exercise of Stock Options or Company SARs, the cashless settlement of RSUs, the satisfaction of tax withholding obligations arising from the exercise, payment or vesting of any Company Equity Awards (to the extent provided by such Company Equity Awards as in effect on the date of this Agreement), (iii) issue, grant, deliver or sell any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or rights (which term, for purposes of this Agreement, will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights), other than pursuant to (I)(A) the exercise of Stock Options or Company SARs or (B) the vesting or settlement of Company PUs and Company RSUs, in each case outstanding as of the Measurement Date, in all cases in accordance with the terms of the applicable award or plan as in effect on the date of this Agreement, or (II) the conversion of Class B Common Stock into Common Stock as provided for in Article IV, Section 4(f) of the Company’s articles of incorporation as in effect as of the date of this Agreement, (iv) enter into any contract, understanding or arrangement with respect to the sale, voting, pledge, encumbrance, disposition, acquisition, transfer, registration or repurchase of its capital stock or such securities or other rights, except in each case as permitted under Section 5.1(d), or (v) register for (A) increases in salarysale, wages and benefits of non-executive officers resale or employees other transfer any Shares under the Securities Act on behalf of the Company or any other Person;
(d) (i) increase the Subsidiaries compensation or benefits payable or to become payable to, or make any payment not otherwise due to, any of its past or present directors, officers, or employees, except for increases in the ordinary course of business consistent with past practice in timing and amount or as required by the terms of a Company Benefit Plan as in effect on the date of this Agreement, (ii) other than in the ordinary course of business consistent with past practice or required by the terms of a Company Benefit Plan as in effect on the date of this Agreement, grant any severance or termination pay to any of its past or present directors or officers, (iii) other than in the ordinary course of business consistent with past practice, enter into any new employment or severance agreement with any of its past or present directors or officers, (Biv) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into than in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, amend in any material respect or amend take any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance action to accelerate rights under any Company Benefit Plans or other employee benefit any plan, agreement, program, policy, trust, fundfund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, policy (v) contribute any funds to a “rabbi trust” or arrangement for the benefit similar grantor trust, (vi) change any actuarial assumptions currently being utilized with respect to Company Benefit Plans, except as required by applicable Law or welfare of by GAAP, or (vii) grant any equity or equity-based awards to directors, officers or current or former employees, except in each case to the extent required by GAAP, applicable law Laws or regulationby existing Company Benefit Plans set forth in Section 3.13(a) of the Company Disclosure Letter;
(fe) acquire, sell, lease, mortgage, encumber merge or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and consolidate the Company or another wholly-owned Subsidiary any of the Company;
(g) (i) incurits Subsidiaries with any Person, assume other than mergers or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt consolidations in the ordinary course of business consistent with past practice under existing lines involving wholly-owned Subsidiaries;
(f) sell, lease or otherwise dispose of creditan amount of assets or securities, including by merger, consolidation, asset sale or other business combination (iiincluding formation of a Company Joint Venture ) or by property transfer, other than (1) sales of assets in the ordinary course of business consistent with past practice and (2) other sales or dispositions for fair market value not exceeding $2,000,000 in any single transaction and not exceeding $4,000,000 in the aggregate for all transactions;
(g) other than in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets (tangible or intangible), or create, assume or suffer to exist any Liens thereupon, other than Permitted Liens;
(h) make any acquisitions, by purchase or other acquisition of stock or other equity interests, or by merger, consolidation or other business combination (including formation of a Company Joint Venture) or make any material purchase(s) of any property or assets, from any Person (other than a wholly owned Subsidiary of the Company), in all such cases other than (1) acquisitions or purchases in the ordinary course of business operations consistent with past practice and (2) other acquisitions or purchases not exceeding $1,000,000 in any single transaction and not exceeding $3,000,000 in the aggregate for all transactions.
(i) (1) enter into, renew, extend, amend or terminate any Contract or Contracts that, individually or in the aggregate with other such entered, renewed, extended, amended or terminated Contracts, would reasonably be expected to have a Company Material Adverse Effect, or (2) materially amend in any manner adverse to the Company or any of its Subsidiaries, or terminate (other than termination in accordance with their terms), any Material Contract;
(j) incur, assume, guaranteeguarantee or prepay any indebtedness for borrowed money or offer, endorse place or otherwise become liable arrange any issue of debt securities or responsible commercial bank or other credit facilities, in either case other than any of the foregoing that is in the ordinary course of business;
(whether directlyk) make any loans, contingently advances or otherwise) for the obligations of capital contributions to or investments in any other person except Person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, other than (A) loans, advances or capital contributions (1) to or among wholly owned Subsidiaries in the ordinary course of business consistent with past practice or (2) as required by contracts entered in the ordinary course of business consistent with past practice, or (iiiB) advances to directors, officers and employees for business expenses incurred in the ordinary course of business consistent with past practice;
(l) authorize or make any loanscapital expenditure, advances or other than capital contributions to, or investments in, any other person except expenditures in the ordinary course of business consistent with past practice and except which during the period from the date hereof through the Closing Date (1) shall be made at times and in relative periodic amounts consistent with the Company’s capital expenditures made during fiscal 2006, and (2) shall not in the aggregate exceed by more than $1,000,000 the capital expenditures provided for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and in the Company or another wholly-owned SubsidiaryCompany’s projections for the full fiscal year 2007 (a copy of which projections has been provided to ParentCo);
(hm) modifychange its financial accounting policies or procedures, amend other than as required by Law, GAAP or terminate any the rules or policies of the Material Contracts Public Company Accounting Oversight Board, or waivewrite up, release write down or assign write off the book value of any rights or claims thereunderassets of the Company and its Subsidiaries, except other than (i) in the ordinary course of business and consistent with past practicepractice or (ii) as may be required by Law, GAAP or the rules or policies of the Public Company Accounting Oversight Board;
(in) change waive, release, assign, settle or compromise any Legal Actions, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages not in excess of $250,000 with respect to any individual case or series of related cases, or $500,000 in the aggregate, in any case without the imposition of any material restrictions on the future conduct of the business and operations of the Company or any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentits Subsidiaries;
(jo) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Material Subsidiaries;
(p) settle or compromise any material Tax audit, make or change any material Tax election or file any material amendment to a material Tax Return, change any annual Tax accounting period or adopt or change any Tax accounting method (except as may be required by Law, GAAP or the Subsidiaries rules or policies of the Public Company Accounting Oversight Board), enter into any material closing agreement, surrender any right to claim a material refund of Taxes or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(q) enter into, materially amend in a manner adverse to the Company or any of its Subsidiaries, waive or terminate (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger terminations in accordance with the terms thereof their terms) any Affiliate Transaction; or materially delay such consummation; or
(mr) enter into an agreement, contract, commitment agree or arrangement commit to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (Bandag Inc), Merger Agreement (Bandag Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to until the Effective Time, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its all reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of the Subsidiariesits subsidiaries, to keep available the services of its and their present current officers and employees, key employees and to preserve the good will of maintain existing relationships with those having significant business relationships with itthe Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 5.1 of the Company Disclosure Statement, Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Company will not, and will not permit any of the Subsidiaries toDisclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Parent:
Equity One (anot to be unreasonably withheld), (i) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell or sellpledge, or authorize or propose the issuance, reissuance sale or sale pledge of (iA) additional shares of capital stock of any classCompany Securities or Subsidiary Securities, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stockin each case, other than Shares issuable upon exercise or vesting of the issuance of Common Shares pursuant to: (A) the exercise of Options Rights outstanding on the date hereof pursuant or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the terms thereof as in effect Disclosure Letter and which are outstanding on the date hereof or as modified as contemplated by Section 2.10hereof, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, for Shares outstanding on the date hereof;
; (cii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside aside, make or pay any dividend or other distribution (whether in cash, capital stock, rights thereto stock or other assets, securities or property or any combination thereofproperty) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, on any shares of its beneficial interest or capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee stock of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets its subsidiaries (other than inventorycash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) or securities with provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a valuedate no later than September 15, individually or 2001 in an amount not to exceed $0.13 per share plus any dividends in the aggregateminimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, in excess the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of $20.0 million, that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the case minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv)
(1) make any acquisition, by means of rolling stocka merger or otherwise, or $3.0 million in the case of other assets or securities, or enter into any commitment sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to do any of the foregoing or enter into any material commitment or transaction outside tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than transactions between a wholly-owned Subsidiary and in the Company ordinary course of business, enter into any Material Contract or another wholly-owned Subsidiary grant any release or relinquishment of the Company;
any material contract rights; (gv) (i) incur, incur or assume or pre-pay any long-term debt or incur or assume any short-term debt, for borrowed money except that the Company and the Subsidiaries may incur, assume or pre-pay for debt incurred in the ordinary course of business consistent with past practice under and except for debt that may be incurred pursuant to existing lines contractual arrangements as in effect on the date hereof not in excess of credit, $50,000 in any single instance or $150,000 in the aggregate; (iivi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practicepractice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
aggregate; (h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(iviii) change any of the accounting methods or tax principles, practices or elections used by it unless or any of its subsidiaries, except as required by GAAP, make any material Tax election the SEC or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
United States generally accepted accounting principles; (jix) adopt a plan of complete any amendments to the Declaration or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Equity One Inc), Merger Agreement (United Investors Realty Trust)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, (a) The Company agrees that during the period from the date of this Agreement to the Effective TimeTime (unless the other party shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will, and will cause each of the its Significant Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toon Schedule 7.1, prior to the Effective Time, neither the Company nor any of its Significant Subsidiaries will, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(bi) except for issuances of capital stock of the Subsidiaries shares to be issued or delivered pursuant to the Company or a wholly-owned SubsidiaryCompany's Option Plans, issue, reissue deliver, sell, dispose of, pledge or sellotherwise encumber, or authorize or propose the issuance, reissuance sale, disposition or sale pledge or other encumbrance of (iA) any additional shares of capital stock of any classclass (including the Shares), or any securities or rights convertible into into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock of any classstock, or any rights, warrants warrants, options, calls, commitments or options any other agreements of any character to purchase or acquire any convertible shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(cii) declareexcept pursuant to the Company's stock-based employee benefit plans, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or redeem, purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiesoutstanding Shares;
(eiii) except split, combine, subdivide or reclassify any Shares or declare, set aside for (A) increases in salary, wages and benefits of non-executive officers payment or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practicepay any dividend, or (C) increases make any other actual, constructive or deemed distribution in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare respect of any directorsShares or otherwise make any payments to shareholders in their capacity as such, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, declaration and payment of regular quarterly cash dividends not in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into 0.03 per Share for any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between quarterly period and except for dividends by a wholly-wholly owned Subsidiary and the Company or another wholly-owned Subsidiary subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jiv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries its subsidiaries (other than the Merger);
(kv) payadopt any amendments to its Articles of Incorporation or By-Laws or alter through merger, discharge liquidation, reorganization, restructuring or satisfyin any other fashion the corporate structure or ownership of any subsidiary of the Company;
(vi) make any material acquisition, by means of merger, consolidation or otherwise, or fail to paymaterial disposition (other than disposition of assets in the ordinary course of business, discharge consistent with past practice), of assets or satisfysecurities;
(vii) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any claimother person, liability other than to the Company or obligation any wholly owned subsidiary of the Company;
(contingent viii) grant any material increases in the compensation of any of its directors, officers or otherwise)key employees, except in the ordinary course of business and in accordance with past practice;
(ix) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, termination, pension or employment plans, agreements or arrangements as in effect on the date hereof to any director or officer of the Company, whether past or present;
(x) enter into any new or materially amend any existing employment or severance or termination agreement with any such director or officer;
(xi) except in the ordinary course of business consistent with past practice or as may be required to comply with applicable law, become obligated under any new pension plan, welfare plan, multiemployer plan, employee benefit plan, severance plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of materially enhancing any benefits thereunder;
(xii) authorize or make any individual capital expenditure in excess of $1,000,000 or authorize or make capital expenditures in excess of $15,000,000 in the aggregate;
(xiii) settle or compromise any material claims or litigation or, except in the ordinary and usual course of business, modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(xiv) make any material change, other than in the ordinary course of business and consistent with past practicepractice or as required by applicable law, regulation or change in generally accepted accounting principles, in accounting policies or procedures applied by the Company (including tax accounting policies and procedures);
(lxv) takeexcept as otherwise required by applicable law or regulation, make any tax election or agree permit any insurance policy naming it as a beneficiary or a loss payable payee to commit to takebe canceled or terminated, except in the ordinary course of business;
(xvi) take any action that would to amend or is reasonably likely to result alter the Rights Agreement in any of manner adverse to Parent's, Newco's or the conditions Company's ability to commence or consummate the transactions contemplated by this Agreement pursuant to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationhereof; or
(mxvii) authorize, or enter into an any contract, agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (Giddings & Lewis Inc /Wi/), Merger Agreement (Taqu Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of as approved in writing by Parent, during the period from the date of this Agreement to the Effective Timeacceptance of Shares for payment, the Company will, and will cause each of the Subsidiaries to, will each conduct its operations only in the according to its ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itbusiness. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of Agreement, neither the Company Disclosure Statement, the Company will not, and will not permit nor any of the Subsidiaries to, prior to the Effective TimeSubsidiary, without the prior written consent of Parent:, will
(ai) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell or sellpledge, or authorize or propose the issuance, reissuance sale or sale pledge of (iA) additional shares of capital stock of any classclass (including the Shares), or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities or capital stockof the Company for shares, other than the issuance of Common (1) Shares pursuant to: (A) the exercise of Options outstanding on the date hereof issuable pursuant to the terms thereof as of outstanding Stock Options and commitments disclosed in effect on Section 4.2, or (2) issuance of shares of capital stock to the date hereof or as modified as contemplated Company by Section 2.10a wholly-owned Subsidiary, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, for Shares outstanding on the date hereofthereof or split, combine or reclassify any of the Company's capital stock;
(cii) purchase, redeem or otherwise acquire, or propose to purchase or otherwise acquire, any of its outstanding securities (including the Shares);
(iii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or on any combination thereof) in respect shares of any class or series of its capital stock other than between any of the Company other than the regular quarterly dividends of $.275 per share with respect to the Series A Preferred Shares and any of $.25 per share with respect to the Series B Preferred Shares, except that a direct or indirect wholly-owned SubsidiariesSubsidiary may pay a dividend or distribution to its parent;
(div) splitexcept as disclosed to Parent prior to the date hereof, combine, subdivide, reclassify make any acquisition of a material amount of assets or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquiresecurities, any shares disposition (including by way of its capital stockmortgage, license, encumbrance or any Lien) of its other securities;
(e) except for (A) increases in salary, wages and benefits a material amount of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing a material contract or enter into release or relinquish any material commitment contract rights, or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company make any amendments, or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtmodifications thereto, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in all instances for actions in the ordinary course of business consistent with past practice under existing lines of credit, business;
(iiA) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practicebusiness, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (iiiB) make any loans, advances or of capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loansperson, advances, capital contributions or investments between any wholly-owned Subsidiary and other than to the Company or another wholly-any direct or indirect wholly owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(kvi) pay, discharge discharge, settle or satisfysatisfy any material claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business and consistent or in accordance with past practicetheir terms;
(lvii) takepropose or adopt any amendments (initiated by the Board of Directors) to the Certificate of Incorporation or Bylaws of the Company (or any such similar organizational documents of the Subsidiaries);
(viii) except as disclosed in Schedule 5.6(d) of the Disclosure Statement, enter into any new employment, severance or termination agreements with, or grant any increase in severance or termination pay to, any officers, directors or key employees or grant any material increases in the compensation or benefits to officers, directors and key employees;
(ix) change any accounting methods, principles or practices materially affecting their assets, liabilities or business, except insofar as may be required by a change in generally accepted accounting principles;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) except as disclosed to Parent prior to the date hereof, make or agree to commit make any new capital expenditure or expenditures not previously committed to take, any action that would which individually is in excess of $500,000 or is reasonably likely which in the aggregate are in excess of $1 million; or
(xii) agree in writing or otherwise to result in take any of the conditions to the Merger set forth in Article VII foregoing actions or any of the conditions to the Offer not being satisfied, or action which would make any representation or warranty of the Company contained herein inaccurate in any material respect at, this Agreement untrue or as of incorrect at any time prior to, to acceptance of Shares for payment in the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24Offer.
Appears in 2 contracts
Samples: Merger Agreement (Score Acquisition Corp), Agreement and Plan of Merger (Talley Industries Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement and the Effective Time, except (i) as set forth in Section 4.2 of the Company willDisclosure Schedule, (ii) as required, expressly contemplated or permitted by this Agreement, (iii) as required by applicable Laws (including Section 409A of the Code) or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and will shall not permit any of its Subsidiaries, to:
(a) cause each or permit any amendment, modification, alteration or rescission of its certificate of incorporation, bylaws or other charter or organizational documents;
(b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock or the capital stock of its Subsidiaries (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary thereof and quarterly dividends with record and payment dates consistent with past practice in an amount not to exceed $0.10 per share of Company Common Stock) or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or 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 to it or any of its Subsidiaries toand the acceptance of shares of Company Common Stock in payment of the exercise price or withholding Taxes incurred by any holder in connection with the exercise of Company Options, conduct the lapse of restrictions on Company Restricted Shares or the settlement of Deferred Shares;
(c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its operations only capital stock or securities 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 securities, other than (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options or settlement of Deferred Shares outstanding as of the date of this Agreement or as may be granted after the date of this Agreement as permitted under this Section 4.2, (ii) issuances of shares of Company Common Stock in the ordinary course of business consistent with past practice and will use its reasonable best effortspursuant to the Company Benefit Plans, and will cause each (iii) the sale of shares of Company Common Stock pursuant to the exercise of Company Options if necessary to effectuate an optionee direction upon exercise or for withholding of Taxes, (iv) the grant of equity compensation awards in the ordinary course of business consistent with past practice in accordance with the Company’s customary schedule or (v) pursuant to the agreements existing as of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization date of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or and as set forth in Section 6.01 4.2 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned SubsidiariesSchedule;
(d) splitsell, combinetransfer, subdividedeliver, reclassify or redeemlease, purchase license, sublicense, mortgage, pledge, encumber or otherwise acquiredispose (in whole or in part), or propose to redeem create, incur, assume or purchase or otherwise acquiresubject any Lien, other than Permitted Liens, on, any shares of its capital stockproperties, assets, securities, properties, interests, businesses or rights (including any Intellectual Property) of the Company or any of its other securitiesSubsidiaries which are material, individually or in the aggregate, to the business of the Company and its Subsidiaries (taken as a whole), except in the ordinary course of business consistent with past practice;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries other than in the ordinary course of business consistent with past practice, (A) incur any indebtedness for borrowed money or (B) increases assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party in salaryeach case in excess of $25 million in the aggregate;
(f) make any capital expenditures, wages and benefits granted to officers and employees of the Company capital additions or the Subsidiaries in conjunction with new hires, promotions or other changes in job status capital improvements except in the ordinary 19 23 course of business consistent with past practice, practice that do not exceed individually or in the aggregate $42 million;
(Cg) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into other than in the ordinary course of business consistent with past practice, enter into any Material Contract;
(ih) except as required by existing written agreements or Company Benefit Plans, (A) grant or increase the compensation or fringe other benefits payable or provided to become the Company’s present or former employees, directors or officers, (B) increase benefits payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by under any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing policies or employment agreements, plans or policies and as required by such agreements, plans or polices), or (ivC) enter into any employment employment, deferred compensation, change of control, severance or severance retention agreement withwith any present or former employee, any director, director or officer or other employee of the Company or any of the SubsidiariesCompany, or (vD) establish, adopt, enter into, into or amend (except as required by applicable Law) any collective bargainingbargaining agreement, bonus, profit profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance stock or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any current or former directors, officers or current employees or former employeesany of their beneficiaries, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 millionexcept, in the case of rolling stockany employee benefit plan, trust, fund, policy or $3.0 million arrangement, as would not result in any material current or future increase in cost to the Company; other than in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
clauses (gA) through (iD) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iiiE) grant any equity or equity-based awards;
(i) except as otherwise authorized by Section 4.2(h), enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries who is compensated at a salary or rate of compensation of $150,000 or more per year;
(j) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company and its Subsidiaries (taken as a whole);
(k) make any loansmaterial change to its financial accounting methods or practices, advances except as may be required by GAAP, Regulation S-X or capital contributions to, other rule or investments in, any regulation promulgated by the SEC;
(l) other person except than in the ordinary course of business consistent with past practice and except for loanspractice, advancesmake or change any material election in respect of Taxes, capital contributions adopt or investments between change in any wholly-owned Subsidiary and the Company material respect any accounting method in respect of Taxes, settle or another wholly-owned Subsidiarycomprise any material claim or assessment in respect of Taxes, file any amended Tax Return that is reasonably likely to result in a material increase in a Tax liability, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund;
(hm) modifyenter into any agreement or arrangement that by its terms limits or otherwise restricts in any material respect the Company, any of its Subsidiaries or any successor thereto or that would, after the Effective Time, by its terms limit or restrict in any material respect the Company, any of its Subsidiaries, Merger Sub or any of their respective Affiliates, from engaging or competing in any line of business, in any location or with any Person;
(n) other than in the ordinary course consistent with past practice (except as provided in Section 4.2(o) below), (i) enter into any agreement that if entered into prior to the date hereof would be a Material Contract; (ii) modify or amend in any material respect, transfer or terminate any of the Material Contracts Contract or waive, release or assign any material rights or claims thereto or thereunder; (iii) enter into or extend any lease with respect to the Company’s real property; or (iv) modify, amend, transfer in any way or terminate any Intellectual Property agreements or confidentiality agreement with any Third Party, or waive, release or assign any material rights or claims thereto or thereunder, except in each of cases (i) through (iv), if the ordinary course effect of business such action would be materially adverse to the Company and consistent with past practiceits Subsidiaries taken as a whole;
(o) pay, discharge, satisfy or settle any litigation or waive, assign or release any material rights or claims except, in the case of litigation, any litigation which settlement would not: (i) change impose any injunctive or similar order on the Company or any of its Subsidiaries or restrict in any way the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization business of the Company or any of its Subsidiaries or (ii) exceed $1,000,000 in cost or value to the Subsidiaries (other than the Merger)Company or any of its Subsidiaries;
(kp) pay, discharge effectuate a “plant closing” or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than “mass layoff” as those terms are defined in the ordinary course WARN without complying with the notice requirements and all other provisions of business and consistent with past practice;WARN; or
(lq) take, or agree to commit in writing to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth actions described in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
clauses (ma) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24through (p) above.
Appears in 2 contracts
Samples: Merger Agreement (Chaparral Steel CO), Merger Agreement (Gerdau Ameristeel Corp)
Conduct of Business of the Company. Except as for matters set forth in Section 4.01 of the Company Disclosure Letter or otherwise expressly permitted or required by this Agreement or required by applicable Law or with the prior written consent of ParentParent (which consent shall not be unreasonably withheld, during the period delayed or conditioned), from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with its terms, the Company willshall, and will shall cause each Company Subsidiary to, use reasonable best efforts to conduct its and their respective businesses in the ordinary course and, to the extent consistent therewith, use reasonable best efforts to (i) preserve intact its and their respective present business organization and (ii) preserve its and their present relationships with customers, suppliers, licensors, licensees, distributors and others having material business dealings with it and them. In addition, except for matters set forth in the Company Disclosure Letter or otherwise expressly permitted or required by this Agreement or required by applicable Law, from the date of this Agreement to the earlier of the Subsidiaries Effective Time or the termination of this Agreement in accordance with its terms, the Company shall not, and shall not permit any Company Subsidiary to, conduct do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) (i) declare, set aside, establish a record date for, authorize, make or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities, property or otherwise) in respect of, any of its operations only capital stock, other than dividends and distributions of cash by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) except for the settlement of Company Stock Options or Company RSUs, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) repurchase, redeem, offer to redeem or otherwise acquire, directly or indirectly, any shares of capital stock of the Company or any Company Subsidiary or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire any such shares of capital stock, except (A) for acquisitions of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of Company Stock Options, (B) for the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plan, (C) for the acquisition by the Company of Company Stock Options in connection with the forfeiture of such awards, (D) for the acquisition by the Company of Company RSUs in connection with the forfeiture of such awards and (E) for the acquisition by the Company of shares of Company Common Stock in connection with the forfeiture of Restricted Stock, in each case in accordance with their terms;
(b) issue, deliver, sell, authorize, pledge or otherwise encumber any shares of its capital stock or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire such shares, any Voting Company Debt or any other rights that give any person the right to receive any economic interest of a nature accruing to the holders of Company Common Stock, other than issuances of Company Common Stock upon (i) the exercise of Company Stock Options in accordance with their terms, (ii) the vesting of Company RSUs in accordance with their terms and (iii) the vesting of Restricted Stock in accordance with their terms;
(c) (i) amend, adopt any amendment to or otherwise change its certificate of incorporation, by-laws or other comparable organizational documents (except for immaterial or ministerial amendments), (ii) adopt any agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganizational document or (iii) adopt any “poison pill” or similar stockholder rights plan;
(d) acquire or agree to acquire, directly or indirectly, in a single transaction or a series of related transactions, whether by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any assets outside of the ordinary course of business, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person (other than the Company or any Company Subsidiary), if the aggregate amount of consideration paid or transferred by the Company and the Company Subsidiaries would exceed $25,000,000;
(e) except, as required pursuant to the terms of any Company Benefit Plan or Company Benefit Agreement or other written Contract to which the Company or any Company Subsidiary is a party, in each case, in effect on the date of this Agreement, or as required by applicable Law (A) adopt, enter into, establish, terminate, materially amend or modify any Company Benefit Plan or Company Benefit Agreement, (B) grant to any director or employee of the Company or any Company Subsidiary any increase in compensation or benefits (except base salary or wage increases in the ordinary course of business consistent with past practices with respect to employees who are not directors or executive officers and whose annual compensation is less than $250,000 prior to any such increase), (C) grant to any director or employee of the Company or any Company Subsidiary any increase in severance or termination pay, (D) enter into any employment, consulting, severance or termination agreement with any director or employee of the Company or any Company Subsidiary, (E) change the actuarial assumptions applicable to any Company Benefit Plan or Company Benefit Agreement, except as recommended by the Company’s actuaries in a manner consistent with past practice or (F) take any action to accelerate any rights or benefits under any Company Benefit Plan or Company Benefit Agreement; provided that the foregoing clauses shall not restrict the Company or any of the Company Subsidiaries from (i) entering into or making available to newly hired employees or to existing employees (other than executive officers), in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements to the extent consistent with past practice, or (ii) granting bonuses to to newly hired employees or to existing employees (other than executive officers) in an aggregate amount not to exceed $500,000;
(f) make any material change in accounting methods, procedures, principles or practices or materially revalue any of its assets, except as may be required (i) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by Law, including Regulation S-X promulgated under the Securities Act;
(g) sell, lease (as lessor), license or otherwise dispose of (including through any “spin-off”), or pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien), any properties or assets (other than Intellectual Property) that have a value, individually or in the aggregate, of more than $25,000,000, except (i) sales or other dispositions of inventory and excess or obsolete properties or assets in the ordinary course of business or (ii) pursuant to Contracts to which the Company or any Company Subsidiary is a party made available to Parent and in effect prior to the date of this Agreement;
(h) sell, assign, license, allow to lapse or expire or otherwise transfer or dispose of any Company Intellectual Property owned by the Company or any Company Subsidiary that is material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except for (i) non-exclusive licenses (including sublicenses) to Intellectual Property granted in the ordinary course of business, (ii) pursuant to Contracts to which the Company or any Company Subsidiary is a party made available to Parent and in effect prior to the date of this Agreement (iii) sales assignments, licenses, transfers or disposals solely among the Company and the Company Subsidiaries, or (iv) abandonment or other disposition of any Company Registered Intellectual Property at the end of the applicable statutory term, in the ordinary course of prosecution or otherwise in the ordinary course of business;
(i) (i) incur, issue, syndicate, refinance, or otherwise become liable for, or materially modify the terms of (including by extending the maturity date thereof) any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee, assume or endorse any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, in each case other than (A) interest rate and other hedging arrangements on customary commercial terms in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) additional borrowing under the conversion of Class A Common Shares, Company’s or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company Subsidiaries’ existing credit facilities and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries additional borrowings incurred in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees that can be prepaid without penalty; provided that the aggregate principal amount of such additional borrowings that are outstanding as of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries)Closing may not exceed $50,000,000, or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments (other than investments pursuant to acquisitions not in violation of Section 4.01(d)) in, any other person Person, other than to or in the Company or any Company Subsidiary;
(j) other than in accordance with the Company’s capital expenditure budget made available to Parent, make or agree to make any capital expenditure or expenditures that in the aggregate are in excess of $10,000,000;
(k) pay, discharge, settle, compromise or satisfy, (i) any pending or threatened claims, liabilities or obligations relating to a Proceeding (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any such payment, discharge, settlement, compromise or satisfaction of a claim solely for money damages in the ordinary course of business in an amount not to exceed $5,000,000 per payment, discharge, settlement, compromise or satisfaction or $15,000,000 in the aggregate for all such payments, discharges, settlements, compromises or satisfactions or (ii) any litigation, arbitration, or proceeding that relates to the transactions contemplated thereby;
(l) except as required by Law, make, revoke or change any material Tax election (other than Tax elections (i) made in the ordinary course in connection with filing Tax Returns or (ii) which would not have an adverse effect upon the Company, Parent or the Surviving Corporation after the Closing Date (e.g., Section 338(h)(10) Elections)), make any material change to any method of Tax accounting, amend any material Tax Return (other than any such amendment in the ordinary course of business), enter into any closing agreement with respect to Taxes, or settle or compromise any material Tax liability or refund; provided that the Company may settle audits in the ordinary course up to an aggregate amount of $1,000,000 in excess of the amounts reserved in respect thereof;
(i) except as is in the ordinary course of business consistent with past practice and except for loanspractice, advancesenter into, capital contributions or investments between modify or amend in a manner that is adverse in any wholly-owned Subsidiary and material respect to the Company any Specified Contract or another wholly-owned Subsidiaryany Contract that, if existing on the date of this Agreement, would have been a Specified Contract or (ii) materially modify its privacy policies or the operations or security of the material Company Systems except as required by Law or in a manner that enhances protection or security;
(hn) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless other than as required by applicable lawLaw, enter into any material closing agreementcollective bargaining agreement with, settle recognize or certify any material Tax claim labor union, labor organization, works council or assessment or consent to any material Tax claim or assessment or any waiver group of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization employees of the Company or any of its subsidiaries as the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, bargaining representative for any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationEmployees; or
(mo) enter into an agreementauthorize, contract, commitment commit or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, (a) The Company agrees that during the period from the date of this Agreement to the Effective TimeTime (unless the other parties shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will, and will cause each of the its Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toon Schedule 7.1, prior to the Effective Time, neither the Company nor any of its Subsidiaries will, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(bi) except for issuances of capital stock of shares to be issued or delivered pursuant to awards outstanding on the Subsidiaries to date hereof under the Company or a wholly-owned SubsidiaryCompany's Stock Plans, issue, reissue deliver, sell, dispose of, pledge or sellotherwise encumber, or authorize or propose the issuance, reissuance sale, disposition or sale pledge or other encumbrance of (iA) any additional shares of capital stock of any classclass (including the Shares), or any securities or rights convertible into into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock of any classstock, or any rights, warrants warrants, options, calls, commitments or options any other agreements of any character to purchase or acquire any convertible shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(cii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or redeem, purchase or otherwise acquire, any shares of its outstanding capital stock, or any of its other securitiesincluding the Shares;
(eiii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to shareholders in their capacity as such, other than the payment of a regular quarterly cash dividend on the Company Common Stock on or about September 30, 1999 of $.01 per share payable to shareholders of record on September 15, 1999 and except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required dividends by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jiv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the its Subsidiaries (other than the Merger);
(kv) payadopt any amendments to its Certificate of Incorporation or By-Laws or alter through merger, discharge liquidation, reorganization, restructuring or satisfyin any other fashion the corporate structure or ownership of any Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or fail material disposition (other than acquisition or disposition of inventory, supplies and products in the ordinary course of business, consistent with past practice), of assets or securities, or permit any assets to paybecome subject, discharge other than in the ordinary course of business, to any material lien or satisfyencumbrance;
(vii) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any claimother person, liability other than to the Company or obligation any wholly-owned Subsidiary of the Company;
(viii) grant any increases in the compensation of any of its directors, officers or key employees; for the avoidance of doubt "compensation" being defined to include all stock options, stock appreciation rights, phantom stock units, restricted stock grants, contingent stock grants or otherwisesimilar benefits;
(ix) grant any increases in the compensation of any of its employees, other than employees who are directors, officers or key employees, except in the ordinary course of business consistent with past practice;
(x) pay or agree to pay or accelerate the payment of any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, termination, pension or employment plans, agreements or arrangements as in effect on the date hereof to any director or officer of the Company or any of its Subsidiaries, whether past or present;
(xi) enter into any new or amend any existing employment or severance or termination agreement with any such director or officer;
(xii) except as may be required to comply with applicable law, become obligated under any new pension plan, welfare plan, multiemployer plan, employee benefit plan, severance plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of enhancing any benefits thereunder;
(xiii) settle or compromise any material claims (including any claims in respect of tax liabilities or refunds) or litigation or, except in the ordinary and usual course of business, modify, amend or terminate any of its material contracts or waive, release or assign any material rights or claims;
(xiv) make any change, other than as required by applicable law, regulation or change in generally accepted accounting principles, in accounting policies or procedures applied by the Company (including tax accounting policies and procedures);
(xv) except as otherwise required by applicable law or regulation, make any tax election or permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated, except in the ordinary course of business;
(xvi) take any action to amend or alter the Rights Agreement in any manner adverse to Parent's, Purchaser's or the Company's ability to commence or consummate the transactions contemplated by this Agreement pursuant to the terms hereof;
(xvii) incur any capital expenditures, other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(mxviii) authorize, or enter into an any contract, agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (Omniquip International Inc), Merger Agreement (Textron Inc)
Conduct of Business of the Company. Except as expressly required by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the earlier of (i) the date of termination of this Agreement or (ii) the Effective Time, the Company will, and will cause each of the its Subsidiaries to, (x) conduct its operations only in the ordinary course of business consistent with past practice and will (y) use its all commercially reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available including the services of its key employees and their present officers the goodwill of its customers, lenders, distributors, suppliers, manufacturers, regulators and employees, and to preserve the good will of those having other Persons with whom it has business relationships with itrelationships. Without limiting the generality of the foregoing, and except as otherwise required by applicable Law, court processes or permitted by the requirements of the NYSE or any listing agreement with the NYSE or with the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, from the date of this Agreement to the earlier of (i) the date of termination of this Agreement or as set forth in Section 6.01 of (ii) the Company Disclosure StatementEffective Time, the Company will not, and will cause each of its Subsidiaries not permit to, take any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parentfollowing actions:
(a) propose, make or adopt any amendment changes to its certificate of incorporation or by laws or comparable organizational documentsthe Company Organizational Documents;
(b) except for issuances make, declare, set aside, or pay any dividend or distribution on any shares of its capital stock or otherwise make any payments to its stockholders in their capacity as such, other than dividends paid by a wholly owned Subsidiary to its parent corporation in the ordinary course of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of business;
(c) (i) additional shares adjust, split, combine or reclassify or otherwise amend the terms of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, (ii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or other rights, or offer to do the same, (iii) issue, grant, deliver or sell any shares of its capital stock or any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or rights (which term, for purposes of this Agreement, will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights) (other than the issuance of Common Shares pursuant to: to (A) the exercise of the Stock Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10hereof, or (B) the vesting of Other Stock Awards, in each case outstanding as of the date of this Agreement, (C) the exercise of the Warrant or (D) the conversion of Class A Common Sharesthe Debentures in accordance with their terms), (iv) enter into any Contract, understanding or (ii) any other securities in arrangement with respect ofto the sale, in lieu ofvoting, pledge, encumbrance, disposition, acquisition, transfer, registration or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series repurchase of its capital stock or such securities or other than between rights, except in each case as permitted under Section 5.1(d), or (v) register for sale, resale or other transfer any Shares under the Securities Act on behalf of the Company and or any of the wholly-owned Subsidiariesother Person;
(d) split, combine, subdivide, reclassify (i) increase the compensation or redeem, purchase benefits payable or otherwise acquireto become payable to, or propose to redeem or purchase or make any payment not otherwise acquiredue to, any shares of its capital stock, or any of its past or present directors, officers, service providers, independent contractors or employees (other securities;
(e) except for (A) than increases in salary, wages and the compensation or benefits of non-executive officers payable or to become payable to past or present employees of the Company or its Subsidiaries who were or are not directors or executive officers thereof, to the Subsidiaries extent that such increases are made in the ordinary course of business and consistent with past practice), (Bii) increases in salarygrant any severance or termination pay to any of its past or present directors, wages and benefits granted officers, service providers, independent contractors or employees (other than any such grants made to officers and past or present employees of the Company or its Subsidiaries who were or are not directors or officers thereof, to the Subsidiaries in conjunction with new hires, promotions or other changes in job status extent that such increases are made in the ordinary 19 23 course of business and consistent with past practice), (iii) enter into any new employment or severance agreement with any of its past or present directors, officers, service providers, independent contractors or employees (C) increases in salary, wages and benefits to employees other than any such agreement entered into with an employee of the Company pursuant or any of its Subsidiaries who is not, and as a result of any such agreement does not become, a director or officer thereof, to collective bargaining agreements the extent that such agreement is entered into in the ordinary course of business and consistent with past practice), (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, amend or amend take any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance action to accelerate rights under any Company Benefit Plans or other employee benefit any plan, agreement, program, policy, trust, fundfund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, policy (v) contribute any funds to a “rabbi trust” or arrangement for the benefit similar grantor trust, (vi) change any actuarial assumptions currently being utilized with respect to Company Benefit Plans, or welfare of (vii) grant any equity or equity-based awards to directors, officers or current or former employees, except in each case to the extent required by applicable law Laws or regulationby existing Company Benefit Plans set forth in Section 3.13(a) of the Company Disclosure Letter;
(e) except as set forth in Section 5.1 of the Company Disclosure Letter, merge or consolidate the Company or any of its Subsidiaries with any Person, or alter through merger, liquidation, reorganization, restructuring or in any other fashion, the corporate structure or ownership of any Subsidiary of the Company;
(f) acquireexcept as set forth in Section 5.1 of the Company Disclosure Letter, sell, leaselease or otherwise dispose of a material amount of assets or securities, mortgageincluding by merger, encumber consolidation, asset sale or other business combination (including formation of a Company Joint Venture);
(g) except as in the ordinary course of business and except for Permitted Liens, mortgage or pledge any of its material assets (tangible or intangible), or create, assume or suffer to exist any liens thereupon;
(h) abandon, sell, transfer, exclusively license, or otherwise dispose of any assets Company Intellectual Property, other than licenses entered into in the ordinary course of business;
(i) make any acquisition, by purchase or other acquisition of stock or other equity interests, or by merger, consolidation or other business combination (including formation of a Company Joint Venture), or make any property transfers or material purchases of any property or assets, to or from any Person (other than inventorya wholly-owned Subsidiary of the Company);
(j) disclose or securities with permit the disclosure of any material trade secrets of the Company or any of its Subsidiaries other than in the ordinary course of business pursuant to written confidentiality obligations;
(k) enter into, renew, extend, amend or terminate any Contract the entry into, renewal, extension, amendment or termination of which is or would be material to the Company and its Subsidiaries, taken as a valuewhole;
(l) incur, individually assume, guarantee or prepay any Indebtedness, except for (i) unsecured Indebtedness, not to exceed $500,000 in the aggregate, incurred in the ordinary course of business and repayable within 180 days without penalty, and (ii) Indebtedness under the Credit Facility and other credit facilities disclosed in Section 3.20 of the Company Disclosure Letter;
(m) except as set forth in Section 5.1 of the Company Disclosure Letter, make any loans, advances or capital contributions to, acquisitions of or investments in, any other Person in excess of $500,000 in the aggregate, other than loans, advances or capital contributions to or among wholly owned Subsidiaries and other than investments of available cash in the ordinary course as a part of the Company’s cash management practices and other than as required pursuant to any Company Contract in existence as of the date hereof;
(n) authorize or make any capital expenditure, other than capital expenditures that are not, in the aggregate, in excess of $20.0 million, the amounts set forth in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any Section 5.1 of the foregoing or enter into any material commitment or transaction outside Company Disclosure Letter with respect to each of (i) the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary period commenced on January 1, 2007 and ending on June 30, 2007 and (ii) the Company or another wholly-owned Subsidiary of the Companyperiod commencing on July 1, 2007 and ending on September 30, 2007;
(go) change its financial accounting policies or procedures in effect as of December 31, 2006, other than as required by Law or GAAP, or write up, write down or write off the book value of any assets of the Company and its Subsidiaries, other than (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, or (ii) assumeas may be required by Law or GAAP;
(p) except as set forth in Section 5.1 of the Company Disclosure Letter, guaranteewaive, endorse release, assign, settle or otherwise become liable compromise any Legal Actions, other than waivers, releases, assignments, settlements or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except compromises in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and that involve only the payment by the Company or another wholly-owned Subsidiaryany of its Subsidiaries of monetary damages not in excess of $500,000 individually or $1,000,000 in the aggregate, in any case without the imposition of equitable relief or any restrictions on the business and operations of, on, or the admission of any wrongdoing by, the Company or any of its Subsidiaries;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jq) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries;
(r) settle or compromise any material Tax audit, make or change any material Tax election or file any amendment to any income Tax Return or any other material Tax Return, change any annual Tax accounting period or adopt or change any material Tax accounting method, or enter into any closing agreement with regard to a material Tax matter or consent to any extension or waiver of the Subsidiaries limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(s) enter into, amend, waive or terminate (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger terminations in accordance with the terms thereof their terms) any Affiliate Transaction; or materially delay such consummation; or
(mt) enter into an agreement, contract, commitment agree or arrangement commit to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 2 contracts
Samples: Merger Agreement (K2 Inc), Merger Agreement (Jarden Corp)
Conduct of Business of the Company. Except as required contemplated or permitted by this Agreement or with the prior written consent of Parentas required by applicable law, during the period from the date of this Agreement to the Effective TimeClosing Date, Seller shall cause the Company will, and will cause each of the Subsidiaries to, conduct to carry on its operations business only in the ordinary course of business and, to the extent consistent with past practice and will therewith, use its commercially reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itcurrent business. Without limiting the generality of the foregoing, and from the date of this Agreement to the Closing Date, except as otherwise required or permitted expressly contemplated by this Agreement or as set forth in Section 6.01 of Agreement, Seller shall not permit the Company Disclosure Statementto, other than in the Company will notordinary course of business, and will consistent with past practice, or with the prior consent of Buyer, which consent shall not permit be unreasonably withheld:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of the Subsidiaries toCompany's outstanding capital stock, prior to other than the Effective TimeExtraordinary Dividend, without the prior written consent (B) split, combine or reclassify any of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of outstanding capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, issue or authorize the issuanceissuance of any other securities in respect of, reissuance in lieu of or sale of (i) additional in substitution for shares of its outstanding capital stock or (C) purchase, redeem or otherwise acquire any shares of any class, or securities convertible into its outstanding capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or such shares;
(ii) any other securities in respect ofissue, in lieu ofsell, or in substitution forgrant, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase pledge or otherwise acquire, or propose to redeem or purchase or otherwise acquire, encumber any shares of its capital stock, any other voting securities or any of its other securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber license or otherwise dispose of (including by way of reinsurance) any of its material assets (other than inventory) or securities with a valueinvestments), individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business;
(iv) amend its articles of incorporation or code of regulations;
(v) acquire any corporation, partnership, joint venture, association or other business consistent with past practiceorganization or division thereof, or substantially all of the assets of any of the foregoing;
(vi) (A) incur any material indebtedness for borrowed money or guarantee or otherwise become responsible for any such indebtedness of another person, or (iiiB) make any material loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice Person, other than loans and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except advances to agents in the ordinary course of business and consistent with past practice;
(i) change any of other than as to such matters related to the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization investment portfolio of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practicebusiness;
(lvii) take, make any Tax election or agree to commit to take, settle or compromise any action income tax liability that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would have a Company Material Adverse Effect;
(viii) make any representation change in accounting methods, principles or warranty practices materially affecting its assets or liabilities, except insofar as may be required by law or by a change in applicable accounting principles;
(ix) make any capital expenditures in excess of $1,000 individually or $2,500 in the Company contained herein inaccurate aggregate (not including those made in any material respect at, or as the ordinary course of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationbusiness); or
(mx) enter into an agreement, contract, commitment or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hallmark Financial Services Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the 19 23 Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as required by otherwise expressly provided in this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement hereof to the Effective Time, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary course of business consistent with past practice practice, and the Company and its subsidiaries will each use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact its business organization, to maintain the business organization quantity and quality of the Company and each of the Subsidiariesits customer rental agreements, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, as required or permitted by this Agreement law or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toSchedule 5.1, prior to the Effective Time, neither the Company nor any of its subsidiaries will, without the prior written consent of Parent:
(a) adopt any amendment to its certificate amend the Certificate of incorporation Incorporation or by laws By-Laws or comparable equivalent organizational documents;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, deliver or authorize agree or commit to issue, sell or deliver (whether through the issuanceissuance or granting of options, reissuance warrants, commitments, subscriptions, rights to purchase or sale of (iotherwise) additional shares of capital any stock of any classclass or any other securities or equity equivalents (including, without limitation, stock appreciation rights), except for Employee Option payments contemplated by Section 1.8 hereof with respect to Company Plans as in effect as of June 1, 1995, or securities convertible into capital stock upon any redemption and conversion of Preferred Stock in accordance with the terms of this Agreement, or amend any of the terms of any class, or any rights, warrants or options to acquire any convertible such securities or capital stockagreements outstanding as of the date hereof, other than the issuance extension and acceleration of Common Shares pursuant to: (A) vesting of the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofEmployee Options;
(c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between (provided, that the Company may pay its previously declared regular quarterly Preferred Stock dividend on July 31, 1995, in an aggregate amount not to exceed $42,000, subject to the provisions of Section 6.3(d)), or, except for the redemption of the Preferred Stock pursuant hereto, redeem, repurchase or otherwise acquire any of the Company and its securities or any securities of its subsidiaries, except for cash settlement of the wholly-owned SubsidiariesEmployee Options in accordance with the terms of Section 1.8 hereof;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation incur any indebtedness for borrowed money or fringe benefits payable issue any debt securities or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, guarantee or endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or person; (iiiii) make any loans, advances or capital contributions to, or investments in, any other person person; (iii) pledge or otherwise encumber shares of capital stock of the Company or any of its subsidiaries; or (iv) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon;
(e) enter into, adopt, amend or terminate (other than extensions and acceleration of vesting of existing Employee Options in accordance with Section 1.8 hereof) any bonus, profit sharing, 401(k) plan, 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, or increase in any manner the compensation or benefits of any director, officer or employee (other than normal salary increases in the ordinary course of business for non-executive employees) or pay any benefit not required by any plan or arrangement as in effect as of the date hereof or accelerate the terms for payment of any benefit if such acceleration is not required by any plan or arrangement as in effect as of the date hereof; provided, however, that the Company may pay discretionary bonus amounts to its employees prior to the Effective Time in an aggregate amount not exceeding $1,400,000 subject to the provisions of Section 6.3(d) hereof; provided, in addition, that the Company may pay accrued bonus amounts as such accrued bonuses become due and payable in accordance with the terms of any plan or arrangement as in effect as of the date hereof; provided, that such bonus amounts may be paid only when due and may not be accelerated;
(f) acquire, sell, lease or dispose of any assets outside the ordinary course of business or enter into any contract, agreement, commitment or transaction outside the ordinary course of business consistent with past practice; provided, however, that the Company will sell the land, building and equipment used by the Company as its home office in exchange for consideration equal to an appraisal amount of not less than $500,000, subject to the provisions of Section 6.3(d);
(g) change any of the accounting principles, or methods of application of said principles, or practices used by it;
(h) except as set forth on Schedule 5.1, (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (ii) authorize any new capital expenditure or expenditures which, individually, is in excess of $25,000; (iii) settle any litigations for amounts in excess of $5,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(i) make any Tax election or settle or compromise any Tax liability, other than in the ordinary course of business;
(j) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions in accordance with the terms of such liabilities or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryobligations;
(hk) modify, amend delay or terminate any defer payment of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization accounts payable or other reorganization obligations of the Company or any of its subsidiaries or accelerate collection of receivables or other obligations due the Subsidiaries (other than the Merger)Company or any of its subsidiaries;
(kl) pay, discharge or satisfy, or fail to pay, discharge or satisfy, take any claim, liability or obligation (contingent or otherwise), other than in action outside of the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger except in accordance with the terms thereof or materially delay such consummationprovisions of Sections 5.1(c), (e) and (f) hereof), including but not limited to making any unauthorized distributions; or
(m) enter into an agreementtake, contractor agree in writing or otherwise to take, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24actions described above in Section 5.1.
Appears in 1 contract
Conduct of Business of the Company. Except (a) Unless Parent shall otherwise agree in writing or except as required by otherwise expressly provided for in this Agreement or with as set forth in Section 4.1 of the prior written consent of ParentCompany Disclosure Schedule, during the period from the date of this Agreement to the Effective Time, (i) the Company willand the Company Subsidiaries shall conduct their business in, and will cause each of the Subsidiaries toshall not take any action other than in, conduct its operations only in the ordinary course of business consistent with past practice and will (ii) the Company shall use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers the Company Subsidiaries' officers, employees, Company Producers and employeesconsultants, to maintain existing relationships with all Persons with whom it and the Company Subsidiaries do business, and to preserve the good will possession, control and condition of those having business relationships with it. its and the Company Subsidiaries' assets.
(b) Without limiting the generality of the foregoing, foregoing clause (a) and except as otherwise required or permitted by expressly provided for in this Agreement or as set forth in Section 6.01 4.1 of the Company Disclosure StatementSchedule, during the Company will not, and will not permit any period from the date of the Subsidiaries to, prior this Agreement to the Effective Time, neither the Company nor any of the Company Subsidiaries will, without the prior written consent of Parent:
(aA) adopt amend, waive or otherwise change, in any amendment to respect, its certificate Certificate of incorporation Incorporation or by laws Bylaws (or comparable organizational documentsgoverning instruments);
(bB) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or grant, sell, pledge, dispose of or authorize the issuancepropose to issue, reissuance grant, sell, pledge or sale dispose of (i) additional any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, its capital stock or other securities or equity interests or any Voting Debt, including any securities convertible into or exchangeable for shares of capital stock of any classclass and any other equity-based awards, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than except for the issuance of Common Shares pursuant to: (A) to the exercise of Company Options outstanding on the date hereof pursuant to of this Agreement and set forth on Section 2.2(f) of the terms thereof as Company Disclosure Schedule in effect on the date hereof accordance with their present terms; Table of Contents
(C) split, combine, recapitalize or as modified as contemplated by Section 2.10, reclassify any shares of its capital stock or (B) the conversion of Class A Common Shares, equity interests or (ii) issue any other securities in respect of, in lieu ofthereof, or in substitution for, Shares outstanding on the date hereof;
(c) declare, pay or set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) splitor equity interests, combine, subdivide, reclassify or directly or indirectly redeem, purchase or otherwise acquire, acquire or propose offer to redeem or purchase or otherwise acquire, acquire any shares of its capital stockstock or other securities or equity interests, other than dividends and distributions paid by a Company Subsidiary to the Company or to another Company Subsidiary;
(D) incur, create, assume, prepay or otherwise become liable for any indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any indebtedness, liability or obligation of any Person, except for indebtedness incurred under the Company's existing credit facilities described on Section 4.1(d) of the Company Disclosure Schedule in the ordinary course of business consistent with past practice in an aggregate principal amount not to exceed $250,000;
(E) increase the wages, salaries, bonus, compensation or other benefits of any of its current or former consultants, officers, directors or employees, or enter into, establish, amend or terminate any Company Employee Plan or any other securities;
(e) except employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity or equity-related, pension, retirement, consulting, vacation, severance, separation, termination, deferred compensation, fringe, perquisite, or other compensation or benefit plan, policy, program, agreement, trust, fund or other arrangement with, for (A) or in respect of any current or former consultant, officer, director or employee, in each case other than as required by applicable Law or pursuant to the terms of any Company Employee Plan in effect on the date of this Agreement, or, solely with respect to increases in salary, wages and benefits or salaries of non-executive employees who are not officers or employees of the Company or the Subsidiaries directors, in the ordinary course of business consistent with past practice;
(F) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or GAAP;
(BG) increases in salarytransfer or license to any Person or otherwise extend, wages and benefits granted materially amend or modify, permit to officers and employees lapse or fail to preserve any of the Company Intellectual Property or the Subsidiaries in conjunction with new hiresLicensed Intellectual Property, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except nonexclusive licenses in the ordinary course of business consistent with past practice, or disclose to any Person who has not entered into a confidentiality agreement any trade secrets;
(iiiH) make modify or amend in any loansmaterial manner, advances terminate or capital contributions towaive or assign any material right under any Company Material Contract or enter into any contract that would be a Company Material Contract with a term longer than one year that cannot be terminated without payment of a material penalty and upon notice of 60 days or less, or investments in, any in each case other person except than in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 1 contract
Samples: Merger Agreement (Amcomp Inc /Fl)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent(1) The Company covenants and agrees that, subject to applicable law, during the period from the date of this Agreement to until the earlier of the Effective TimeTime and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of the Parent and the Purchaser or as required or permitted by this Agreement, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct its operations only business in the ordinary course of business consistent Ordinary Course and in accordance with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with it. Law.
(2) Without limiting the generality of Section 4.1(1), subject to Law, the foregoingCompany covenants and agrees that, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of the Parent and the Purchaser or as otherwise required or permitted by this Agreement or as set forth out in Section 6.01 the Budget, the Company shall use its reasonable commercial efforts to maintain and preserve intact the current business organization, assets, properties and business of the Company Disclosure Statementand its Subsidiaries, maintain in effect all material Authorizations of the Company, keep available the services of the present employees and agents of the Company will notand its Subsidiaries and maintain good relations with, and will not permit any of the goodwill of, employees, suppliers, customers, creditors and all other Persons having business relationships with the Company and its Subsidiaries toand, prior to the Effective Time, without except with the prior written consent of Parentthe Parent and the Purchaser, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
(a) adopt any amendment to amend its certificate of incorporation or by laws or comparable organizational documentsConstating Documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company split, combine, consolidate or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional reclassify any shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof undertake any capital reorganization or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof);
(c) in respect of redeem, repurchase, or otherwise acquire or offer to redeem, repurchase or otherwise acquire any class or series shares of its capital stock or reduce the stated capital in respect of the Common Shares or any other than between any shares of the Company and any of the wholly-owned its Subsidiaries;
(d) splitissue, combinegrant, subdividedeliver, reclassify or redeemsell, purchase pledge or otherwise acquireencumber, or propose to redeem authorize the issuance, grant, delivery, sale, pledge or purchase or otherwise acquire, other encumbrance of any shares of its capital stock, securities, options, warrants or similar rights exercisable or exchangeable for or convertible into such capital stock, of the Company or any of its other securitiesSubsidiaries, except for the issuance of Common Shares (i) issuable upon the exercise of the currently outstanding Company Options or (ii) pursuant to outstanding Company Warrants;
(e) except acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses;
(f) reorganize, amalgamate, combine or merge the Company with any other Person;
(g) adopt a plan of liquidation or resolutions providing for (A) increases in salary, wages and benefits of non-executive officers the liquidation or employees dissolution of the Company or any of its Subsidiaries;
(h) sell, pledge, lease, dispose of, surrender, lose the right to use, mortgage, license, encumber (other than Permitted Liens) or otherwise dispose of or transfer any assets of the Company or of any of its Subsidiaries or any interest in any assets of the Company or its Subsidiaries;
(i) make any capital expenditure or similar commitments;
(j) make any loan or advance to, or any capital contribution or investment in, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of, any Person;
(k) prepay any long-term indebtedness before its scheduled maturity or increase, create, incur, assume or otherwise become liable, in one transaction or in a series of related transactions, with respect to any indebtedness for borrowed money or guarantees thereof; provided that any indebtedness created, incurred, refinanced, assumed or for which the Company or any Subsidiary becomes liable in accordance with the foregoing shall be prepayable at the Effective Time without premium, penalty or other incremental costs (including breakage costs);
(l) enter into any interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or similar financial instruments;
(m) make any bonus or profit sharing distribution or similar payment of any kind except as may be required by the terms of a Contract listed in Section 4.1(2) of the Company Disclosure Letter;
(n) grant any general increase in the ordinary course rate of business wages, salaries, bonuses or other remuneration of any Company Employees except as may be required by a Contract listed in Section 4.1(2) of the Company Disclosure Letter;
(o) except as required by IFRS, make any change in the Company’s methods of accounting;
(p) make any material Tax election, information schedule, return or designation, except as required by Law and in a manner consistent with past practice, settle or compromise any material Tax claim, assessment, reassessment or liability, file any amended Tax Return, enter into any material agreement with a Governmental Entity with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the extension or waiver of the limitation period applicable to any material Tax matter or materially amend or change any of its methods or reporting income, deductions or accounting for income Tax purposes except as may be required by Law;
(Bq) increases in salarycreate, wages and benefits granted enter into or increase any severance, change of control or termination pay to officers and employees (or amend any existing arrangement with) any Company Employee, director or executive officer of the Company or change the Subsidiaries in conjunction benefits payable under any existing severance or termination pay policies with new hiresany Company Employee, promotions director or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees executive officer of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, Company;
(r) except as required by Law: (i) increase adopt, enter into or amend any Employee Plan (other than entering into an employment agreement in the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from Ordinary Course with a new Company Employee who was not employed by the Company or any a Subsidiary on the date of the Subsidiariesthis Agreement), or ; (ii) pay any benefit not required by to any existing plan director or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries or to any Company Employee that is not required under the Subsidiariesterms of any Employee Plan in effect on the date of this Agreement; (iii) grant, accelerate, increase or otherwise amend any payment, award or other benefit payable to, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments inof, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions director or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization officer of the Company or any of its Subsidiaries or to any Company Employee; (iv) make any material determination under any Employee Plan that is not in the Subsidiaries Ordinary Course; or (other than v) take or propose any action to effect any of the Merger)foregoing;
(ks) paycancel, discharge waive, release, assign, settle or satisfycompromise any material claims or rights;
(t) commence, waive, release, assign, settle or compromise any litigation, proceedings or governmental investigations;
(u) amend or modify or terminate or waive any right under any Material Contract or enter into any contract or agreement that would be a Material Contract if in effect on the date hereof;
(v) except as contemplated in Section 4.8, amend, modify, terminate, cancel or let lapse any material insurance (or re-insurance) policy of the Company or any of its Subsidiaries in effect on the date of this Agreement, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the terminated, cancelled or lapsed policies for substantially similar premiums are in full force and effect;
(w) in respect of any assets of the Company or its Subsidiaries, waive, release, surrender, let lapse, grant or transfer any material right or value or amend, modify or change, or agree to amend, modify or change, in any material respect any existing material Authorization, right to use, lease, contract, production sharing agreement, Intellectual Property, or other material document;
(x) abandon or fail to diligently pursue any application for any material Authorizations, licenses, leases, or registrations or take any action, or fail to paytake any action, discharge that could lead to the termination of any material Authorizations, licenses, leases or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practiceregistrations;
(ly) takeenter into or amend any Contract with any broker, finder or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationinvestment banker; or
(mz) enter into an agreementauthorize, contractagree, commitment resolve or arrangement otherwise commit, whether or not in writing, to do any of the foregoing.
(3) If, on or after the date of this Agreement, the Company declares or pays any dividend or other distribution on the Common Shares prior to authorizethe Effective Time, recommend, propose the Consideration per Common Share shall be reduced by a number of Parent Shares equal to the amount of such dividends or announce an intention to do any distributions as of the foregoing. 20 24record date thereof.
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of as approved in writing by Parent, during the period from the date of this Agreement to the Effective Timeacceptance of Shares for payment, the Company will, and will cause each of the Subsidiaries to, will each conduct its operations only in the according to its ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itbusiness. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of Agreement, neither the Company Disclosure Statement, the Company will not, and will not permit nor any of the Subsidiaries to, prior to the Effective TimeSubsidiary, without the prior written consent of Parent:, will
(ai) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell or sellpledge, or authorize or propose the issuance, reissuance sale or sale pledge of (iA) additional shares of capital stock of any classclass (including the Shares), or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities or capital stockof the Company for shares, other than the issuance of Common (1) Shares pursuant to: (A) the exercise of Options outstanding on the date hereof issuable pursuant to the terms thereof as of outstanding Stock Options and commitments disclosed in effect on Section 4.2, or (2) issuance of shares of capital stock to the date hereof or as modified as contemplated Company by Section 2.10a wholly-owned Subsidiary, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, for Shares outstanding on the date hereofthereof or split, combine or reclassify any of the Company's capital stock;
(cii) purchase, redeem or otherwise acquire, or propose to purchase or otherwise acquire, any of its outstanding securities (including the Shares);
(iii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or on any combination thereof) in respect shares of any class or series of its capital stock other than between any of the Company other than the regular quarterly dividends of $.275 per share with respect to the Series A Preferred Shares and any of $.25 per share with respect to the Series B Preferred Shares, except that a direct or indirect wholly-owned SubsidiariesSubsidiary may pay a dividend or distribution to its parent;
(div) splitexcept as disclosed to Parent prior to the date hereof, combine, subdivide, reclassify make any acquisition of a material amount of assets or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquiresecurities, any shares disposition (including by way of its capital stockmortgage, license, encumbrance or any Lien) of its other securities;
(e) except for (A) increases in salary, wages and benefits a material amount of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing a material contract or enter into release or relinquish any material commitment contract rights, or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company make any amendments, or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtmodifications thereto, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in all instances for actions in the ordinary course of business consistent with past practice under existing lines of credit, business;
(iiA) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practicebusiness, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (iiiB) make any loans, advances or of capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loansperson, advances, capital contributions or investments between any wholly-owned Subsidiary and other than to the Company or another wholly-any direct or indirect wholly owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(kvi) pay, discharge discharge, settle or satisfysatisfy any material claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business and consistent or in accordance with past practicetheir terms;
(lvii) take, propose or agree to commit to take, adopt any action that would or is reasonably likely to result in any amendments (initiated by the Board of the conditions Directors) to the Merger set forth in Article VII Certificate of Incorporation or any of the conditions to the Offer not being satisfied, or would make any representation or warranty Bylaws of the Company contained herein inaccurate (or any such similar organizational documents of the Subsidiaries);
(viii) except as disclosed in Schedule 5.6(d) of the Disclosure Statement, enter into any new employment, severance or termination agreements with, or grant any increase in severance or termination pay to, any officers, directors or key employees or grant any material respect atincreases in the compensation or benefits to officers, directors and key employees; (ix) change any accounting methods, principles or practices materially affecting their assets, liabilities or business, except insofar as of may be required by a change in generally accepted accounting principles; (x) make any time prior to, the Effective Time, material tax election or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof settle or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do compromise any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24material income tax liability;
Appears in 1 contract
Samples: Merger Agreement (Talley Manufacturing & Technology Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice practice, and the Company will use its all reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganizations, to maintain its present business, to keep available the services of its and their present officers and employeesemployees and to maintain satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, consultants, customers, and to preserve the good will of those others having business relationships with it. Without limiting the generality of the foregoingFurther, and except as otherwise required expressly provided in or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toAgreement, prior to the Effective Time, the Company will not, without the prior written consent of Parent:
(a) adopt any amendment to amend its certificate Articles of incorporation Incorporation, as amended, or by laws or comparable organizational documentsBylaws;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, pledge, or authorize deliver (whether through the issuanceissuance or granting of additional options, reissuance warrants, commitments, subscriptions, rights to purchase, or sale otherwise other than in the ordinary course of (ibusiness consistent with past new hire practices) additional shares of capital any stock of any class, class or any securities convertible into capital shares of stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, class (other than the issuance of the number of shares of Company Common Shares pursuant to: (A) Stock indicated in Section 3.3 hereof upon the exercise in accordance with the current terms of Options the stock options listed in the Company Disclosure Section with respect to Section 3.3 hereof as outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofthis Agreement);
(c) split, combine, or reclassify any shares of its capital stock, declare, set aside aside, or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of its capital stock; or redeem or otherwise acquire any class or series shares of its capital stock or other than between securities; or amend or alter any material term of any of the Company and any of the wholly-owned Subsidiariesits outstanding securities;
(d) splitcreate, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtindebtedness for borrowed money, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse endorse, or otherwise become liable or responsible (whether directly, contingently contingently, or otherwise) for the obligations of any other person except which involve indebtedness for borrowed money or obligations that individually exceed $25,000 or, in the ordinary course of business consistent with past practiceaggregate, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryexceed $50,000;
(hi) modify, amend or terminate increase the compensation of any of the Material Contracts its directors, officers, employees, shareholders, or waive, release or assign any rights or claims thereunderconsultants, except in the ordinary course of business and consistent with past practicepractice or consistent with existing contractual commitments; (ii) pay or accelerate or otherwise modify the payment, vesting, exercisability, or other feature or requirement of any pension, retirement allowance, severance, change of control, stock option, or other employee benefit not required by any existing plan, agreement, or arrangement to any such director, officer, employee, shareholder, or consultant, whether past or present; (iii) except for normal increases in the ordinary course of business in accordance with its customary past practices or consistent with existing contractual commitments, commit itself to any additional or increased pension, profit-sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance, change of control, retirement or other benefit, plan, agreement, or arrangement; or (IV) adopt or amend any Plan;
(if) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than except in the ordinary course of business and consistent with past practice, or pursuant to contractual obligations existing on the date hereof, (i) sell, transfer, mortgage, or otherwise dispose of or encumber any real or personal property, (ii) pay, discharge, or satisfy claims, liabilities, or obligations (absolute, accrued, contingent, or otherwise), or (iii) cancel any debts or waive any claims or rights, commence, settle or compromise any litigation, which involve payments or commitments to make payments that individually exceed $10,000 or, in the aggregate, exceed $50,000;
(g) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any portion of the assets of, or by any other manner, any business of any corporation, partnership, joint venture, association, or other business organization or division thereof,
(h) make or agree to make any new capital expenditure or expenditures that, individually, is in excess of $25,000 or, in the aggregate, are in excess of $50,000 unless in the ordinary course of business consistent with the Company's 1998 budget;
(i) enter into, amend, or terminate any joint ventures or any other agreements, commitments, or contracts that, individually or in the aggregate, are material to the Company (except agreements, commitments, or contracts expressly provided for or contemplated by this Agreement or for the purchase, sale, or lease of goods, services, or properties in the ordinary course of business, consistent with past practice or capital expenditures or inventory purchases consistent with the 1998 budget);
(j) enter into or terminate, or amend, extend, renew, or otherwise modify (including, but not limited to, by default or by failure to act) any material distribution, independent sales representative, noncompetition, licensing, franchise, research and development, supply, or similar contract, agreement, or understanding (except agreements, commitments, or contracts expressly provided for or contemplated by this Agreement or for the purchase, sale, or lease of goods, services, or properties in the ordinary course of business, consistent with past practice);
(k) remove or permit to be removed from any building, facility, or real property any machinery, equipment, fixture, vehicle, or other personal property or parts thereof, except in the ordinary course of business;
(l) takealter or revise its accounting principles, procedures, methods, or agree to commit to takepractices, any action that would or is reasonably likely to result except as required by a change in any of generally accepted accounting principles and concurred with by the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationCompany's independent public accountants; or
(m) enter into an agreement, contract, commitment or arrangement agree to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of the Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the 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 required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of the Parent:
(a) adopt any amendment to its certificate of incorporation charter or by laws By-Laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue reissue, pledge or sell, or authorize the issuance, reissuance reissuance, pledge or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares Shares, in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to: (A) to the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shareshereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the its wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, salary and wages granted to officers and benefits of non-executive officers or hourly employees of the Company or the Subsidiaries in conjunction with promotions or other changes in job status or normal compensation reviews in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay or award any benefit not required by any existing plan or arrangementarrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or (iiiperformance units pursuant to the Option Plans or otherwise) or grant any additional severance or termination pay to (except pursuant to existing agreements, plans or policies and other than as required by such agreements, plans existing agreements or policespolicies described in the Company Disclosure Statement), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, Subsidiaries or (v) establish, adopt, enter into, amend or amend waive any performance or vesting criteria under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employeesemployees (any of the foregoing being an "Employee Benefit Arrangement"), except in each case to the extent required by applicable law or regulation;; provided, however, that nothing herein will be deemed to prohibit the payment of benefits as they become payable; provided, further, however, that the Company may enter into severance agreements, in the form heretofore agreed upon with Parent, with each of Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxx Baltimore, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx.
(f) except as set forth in the Company Disclosure Schedule, acquire, sell, lease, mortgage, encumber lease or dispose of any assets (other than inventory) or securities with a value, individually or in which are material to the aggregate, in excess of $20.0 million, in Company and the case of rolling stock, or $3.0 million in the case of other assets or securitiesSubsidiaries, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-wholly owned Subsidiary and the Company or another wholly-wholly owned Subsidiary of the CompanySubsidiary;
(g) except as set forth in the Company Disclosure Schedule (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume incur or pre-pay debt in the ordinary course of business in amounts and for purposes consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-wholly owned Subsidiary subsidiary of the Company and the Company or another wholly-wholly owned Subsidiary;; or
(h) modifysettle or compromise any suit or claim or threatened suit or claim material to the transactions contemplated hereby or material to the Company and its Subsidiaries, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practicetaken as a whole;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
, (li) takemodify, amend or agree to commit to taketerminate any material contract, (ii) waive, release, relinquish or assign any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII contract (or any of the conditions Company's rights thereunder), right or claim, or (iii) cancel or forgive any indebtedness owed to the Offer Company or any of the Subsidiaries; provided, however, that the Company may not being satisfiedunder any circumstance waive or release any of its rights under any confidentiality agreement to which it is a party;
(j) make any Tax election not required by law or settle or compromise any Tax liability, in either case that is material to the Company and the Subsidiaries; or
(k) agree in writing or otherwise to take any of the foregoing actions prohibited under Section 5.01 or any action which would make cause any representation or warranty of the Company contained herein inaccurate in this Agreement to be or become untrue or incorrect in any material respect at, or as of any time prior to, the Effective Time, date when made or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24deemed made.
Appears in 1 contract
Samples: Merger Agreement (Corcom Inc)
Conduct of Business of the Company. Except as required expressly contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the Effective Time, the Company will, will conduct and will cause each of the its Subsidiaries to, to conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice practice, and the Company will use its reasonable best efforts, and will cause each of the its Subsidiaries to use its commercially reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present current officers and employees, employees and to preserve the good will goodwill of and maintain satisfactory relationships with those Persons having business relationships with itthe Company and its Subsidiaries, and the Company will promptly advise Parent and PH Sub in writing of any material change in the Company’s or any of its Subsidiaries’ condition (financial or otherwise), properties, customer or supplier relationships, assets, liabilities, business prospects or results of operations. Without limiting the generality of the foregoing, foregoing and except as otherwise required expressly provided in or permitted contemplated by this Agreement or as set forth Agreement, during the period specified in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Timepreceding sentence, without the prior written consent of Parent, the Company will not and will not permit any of its Subsidiaries to:
(a) adopt issue, sell, grant options or rights to purchase, pledge, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge of any amendment to its certificate Company Securities or Subsidiary Securities, other than Shares issuable upon exercise of incorporation or by laws or comparable organizational documentsthe Existing Stock Options;
(b) except for issuances of capital stock of the Subsidiaries to the Company acquire or a wholly-owned Subsidiaryredeem, issue, reissue directly or sellindirectly, or authorize the issuance, reissuance amend any Company Securities or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofSubsidiary Securities;
(c) split, combine or reclassify its capital stock or declare, set aside aside, make or pay any dividend or other distribution (whether in cash, capital stock, rights thereto stock or other assets, securities or property or property) on any combination thereof) in respect of any class or series shares of its capital stock (other than between any of cash dividends paid to the Company and any of the wholly-by its wholly owned SubsidiariesSubsidiaries with regard to their capital stock);
(d) split(i) make or offer to make any acquisition, combineby means of a merger or otherwise, subdivideof any business, reclassify assets or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, securities (other than any shares acquisition of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries assets in the ordinary course of business consistent with past practice) or any sale, (B) increases in salarylease, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions encumbrance or other changes disposition of assets or securities, in job status each case involving the payment or receipt of consideration of $50,000 or more, except for purchases or sales of inventory made in the ordinary 19 23 course of business and consistent with past practice, (ii) enter into a Material Contract or terminate or amend any Material Contract or grant any release or relinquishment of any rights under any Material Contract or (Ciii) increases in salary, wages and benefits to employees appoint any Person as an exclusive distributor of the Company pursuant to collective bargaining agreements entered into Company’s products;
(e) other than indebtedness provided by PH Sub or its Affiliates, incur or assume any long term debt or short term debt except for trade payables incurred in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person Person except in wholly owned Subsidiaries of the ordinary course of business consistent with past practice, or Company;
(iiig) make any loans, advances or capital contributions to, or investments in, any other person Person (other than wholly owned Subsidiaries of the Company);
(h) change any of the accounting methods, principles or practices used by it except as required by United States generally accepted accounting principles;
(i) make any Tax election or settle or compromise any federal, state, local or foreign income Tax liability;
(j) propose or adopt any amendments to its Certificate of Incorporation or Bylaws (or similar documents);
(k) grant any stock-related, performance or similar awards or bonuses;
(l) forgive any loans to employees, officers or directors or any of their respective Affiliates or Associates;
(m) enter into any new, or amend any existing, employment, severance, consulting or salary continuation agreements with or for the benefit of any officers, directors or employees, or grant any increases in the compensation or benefits to officers, directors and employees (other than normal increases to Persons who are not officers or directors in the ordinary course of business consistent with past practice practices and except for loansthat, advancesin the aggregate, capital contributions do not result in an increase in benefits or investments between any wholly-owned Subsidiary and compensation expense of the Company or another wholly-owned SubsidiaryCompany);
(hn) modifymake any deposits or contributions of cash or other property to or take any other action to fund or in any other way secure the payment of compensation or benefits under the Plans or agreements subject to the Plans or any other plan, agreement, contract or arrangement of the Company;
(o) enter into, amend, or extend any collective bargaining or other labor agreement, or implement any reduction in labor force, layoff, early retirement program, severance program or other effort concerning termination of Company employees other than routine terminations;
(p) adopt, amend or terminate any of the Material Contracts Plan or waiveany other bonus, release severance, insurance pension or assign any rights other employee benefit plan or claims thereunderarrangement, except in to the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless extent required by GAAP, make any material Tax election law or change or revoke any material Tax election already made, adopt, request or consent as requested by Parent pursuant to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the MergerSection 6.06(b);
(kq) settle or agree to settle any suit, action, claim, proceeding or investigation (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy, satisfy or fail agree to pay, discharge or satisfy, satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise), ) other than the payment, discharge or satisfaction of liabilities reflected or reserved against in full in the Financial Statements or incurred in the ordinary course of business and consistent with past practicesubsequent to that date;
(lr) except as specifically permitted by Section 6.02, take, or agree to commit to take, or fail to take any action that would result or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof hereof or materially delay such consummation;
(s) convene any regular or special meeting (or any adjournment thereof) of the stockholders of the Company other than the meeting contemplated by Section 2.04; or
(mt) enter into an agreement, contract, commitment agree in writing or arrangement otherwise to do take any of the foregoingforegoing actions. Notwithstanding anything to the contrary in this Section 6.01, or to authorizethe Company and its Subsidiaries, recommend, propose or announce an intention to do any upon receipt of the foregoing. 20 24written consent of Parent, which consent will not be unreasonably withheld, may take such actions which the Board of Directors of the Company believes are in the best interests of the Company and its Subsidiaries to conserve capital and reduce expenditures (whether or not such expenditures were included in any budget, forecasts or projections), including with respect to the number of people it employs, the research and development efforts that it pursues, the regulatory and intellectual property filings and related actions that it undertakes, the accounts payable that it pays and the capital expenditures that it makes, including but not limited to with respect to the Company’s image guidance business and its conscious sedation development efforts.
Appears in 1 contract
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company will, and will cause each of agrees (except to the Subsidiaries to, conduct extent that Parent shall otherwise consent in writing) to carry on its operations only business in the usual, regular and ordinary course of business in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, policies to preserve intact the its present business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employeeskey employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and to preserve the good will of those others having business relationships dealings with it, all with the goal of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. Without limiting the generality The Company shall promptly notify Parent of the foregoing, and except occurrence of any materially negative event related to the Company or its business. Except as otherwise required or permitted expressly contemplated by this Agreement or as set forth disclosed in Section 6.01 of the Company Disclosure StatementSchedule 4.1, the Company will shall not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt Enter into any amendment to its certificate commitment or transaction not in the ordinary course of incorporation or by laws or comparable organizational documentsbusiness;
(b) except for issuances of capital stock of the Subsidiaries Transfer to any person or entity any rights to the Company Intellectual Property (other than pursuant to end-user licenses in the ordinary course of business or a wholly-owned Subsidiaryin connection with the License Agreement); or enter into any license of Intellectual Property;
(c) Enter into or amend any agreements pursuant to which any other party is granted marketing, issuedistribution or similar rights of any type or scope with respect to any products of the Company;
(d) Amend or otherwise modify (or agree to do so), reissue except in the ordinary course of business, or sellviolate the terms of, any of the agreements set forth or described in the Company Disclosure Letter;
(e) Commence any litigation;
(f) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(g) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options, or warrants or the grant of stock options to new employees pursuant to outstanding written offers of employment, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities 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 securities;
(h) Accelerate the vesting of, reprice, cash out, or otherwise change the terms of any Company Option or any other outstanding right to purchase shares of the capital stock of the Company;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities 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 in substitution foran amount in excess of $100,000 in the case of a single transaction or in excess of $200,000 in the aggregate in any 30-day period, Shares except in the ordinary course of business;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business;
(l) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the Company or guarantee any debt securities of others;
(m) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(cn) declareSubject to the provisions of Section 4.3 below, set aside adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offers, pay or agree to pay any dividend special bonus or other distribution (whether in cashspecial remuneration to any director or employee, capital stock, rights thereto or other assets, securities increase the salaries or property or any combination thereof) in respect of any class or series wage rates of its capital stock other than between any employees, except as consistent with the ordinary course of the Company and consistent with past practice (provided that the price per share of any of equity participation in the wholly-owned SubsidiariesCompany shall be agreed in advance by Parent);
(do) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries than in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationbusiness;
(fp) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) payPay, discharge or satisfy, in an amount in excess of $100,000 (in any one case) or fail to pay, discharge or satisfy$250,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and of liabilities reflected or reserved against in the Company Financial Statements (or the notes thereto) or that arose in the ordinary course of business subsequent to September 30, 1999, or expenses consistent with past practicethe provisions of this Agreement incurred in connection with any transaction contemplated hereby;
(lq) takeMake or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, 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;
(r) Cancel or fail to renew any existing insurance policy; or
(s) Take, or agree to commit in writing or otherwise to take, any of the actions described in Sections 4.1(a) through (r) above, or any other action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of prevent the Company contained herein inaccurate in any material respect at, from performing or as of any time prior to, the Effective Time, or that would materially impair the ability of cause the Company not to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24perform its covenants hereunder.
Appears in 1 contract
Conduct of Business of the Company. Except as required otherwise contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the Effective Time, the Company willshall, and will the Company Stockholders shall cause each of the Subsidiaries Company to, conduct its operations only business in the usual, regular and ordinary course of business consistent with past practice and will use its reasonable best effortsin substantially the same manner as previously conducted, and will cause each of the Subsidiaries to use its all commercially reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present current officers and employees, employees and to preserve the good will of those having business keep its relationships with itcustomers, suppliers, licensors, licensees and employees and others with which it has business relationships. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in on Section 6.01 5.1 of the Company Disclosure StatementSchedule, from the Company will not, and will not permit any date of the Subsidiaries to, prior this Agreement to the Effective Time, the Company shall not do any of the following without the prior written consent of the Parent:
(a) adopt (i) declare, set aside or pay any amendment to dividends on, or make any other distributions in respect of, any of its certificate capital stock, (ii) split, combine or reclassify any of incorporation its capital stock or by laws issue or comparable organizational documents;
authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (biii) except for issuances purchase, redeem or otherwise acquire any shares of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or other securities convertible into capital stock of any class, thereof or any rights, warrants or options to acquire any convertible securities such shares or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofsecurities;
(cb) declareissue, set aside sell, grant, pledge, deliver, otherwise encumber or pay subject to any dividend or other distribution Lien (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereofi) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by securities convertible into or exchangeable for, or any existing plan options, warrants or arrangementrights to acquire, any such shares, voting securities or convertible or exchangeable securities, or (iii) grant any severance or termination pay (except pursuant to existing agreements"phantom" stock, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation"phantom" stock rights, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any appreciation rights or claims thereunderstock-based performance units, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24other
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent approval of the Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its commercially reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the SubsidiariesCompany, to keep available the services of its and their the present officers and employeeskey employees of the Company, to maintain the Intellectual Property of the Company, to preserve and keep confidential the trade secrets of the Company, and to preserve the good will of those customers, suppliers and all other persons having business relationships with itthe Company. Without limiting the generality of the foregoing, and except as otherwise required or permitted contemplated by this Agreement or as set forth disclosed in Section 6.01 6.1 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toLetter, prior to the Effective Time, the Company will not, without the prior written consent approval of the Parent:
(a) except as required by applicable Law, adopt any amendment to its certificate the articles of incorporation or by by-laws or comparable organizational documentsof the Company;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue reissue, sell or sellpledge, or authorize the issuance, reissuance reissuance, sale or sale pledge of (ix) additional shares of capital stock or other equity securities of any class, or securities convertible into capital stock of any class, or other equity securities or any rights, warrants or options to acquire any such convertible securities or capital stock, stock or other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10equity securities, or (B) the conversion of Class A Common Shares, or (iiy) any other securities in respect of, in lieu of, or in substitution for, Shares Company Capital Stock outstanding on the date hereof;
(c) declare, set aside aside, make or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiariesstock;
(d) directly or indirectly, split, combine, subdivide, reclassify or redeem, retire, purchase or otherwise acquire, or propose to redeem redeem, retire or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries)employees, or (ii) pay any benefit not required by any existing plan or arrangementarrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or (iiiperformance units) or grant any severance or termination pay to (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or policespolicies), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (viii) establish, adopt, enter into, amend or amend take any action to accelerate rights under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law Law or regulationcontemplated by this Agreement; provided, however, that nothing in this Agreement will be deemed to prohibit the payment of benefits as they become payable or prevent the Company from fulfilling any obligation entered into prior to the date of this Agreement;
(f) acquire, sell, lease, mortgagelicense, encumber transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any assets (other than inventory) or securities with a value, individually or the licensing of the Company’s products in the aggregateordinary course of business), in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companybusiness;
(g) enter into any agreement for the acquisition by or license to the Company of any software or technology of any third party;
(h) other than the Bridge Financing, (i) incur, assume or pre-pay prepay any long-term debt indebtedness or incur or assume any short-term debtindebtedness (including, except that the Company and the Subsidiaries may incurin either case, assume by issuance of debt securities), or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practiceperson;
(i) terminate, cancel or request any material change in, or (iii) make agree to any loans, advances or capital contributions to, or investments material change in, any other person except in material agreement of the ordinary course of business consistent with past practice and except for loansCompany, advancesor enter into any material agreement or make or authorize any capital expenditure; provided, capital contributions however, that Parent shall not unreasonably withhold or investments between delay consent to any wholly-owned Subsidiary and request by the Company to terminate, cancel, change or another wholly-owned Subsidiaryenter into a material agreement;
(hj) modifychange the Company’s accounting policies or procedures, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except other than actions in the ordinary course of business and consistent with past practice;
(i) change any practice or as required pursuant to applicable Law or GAAP in the reasonable opinion of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger)Company’s independent certified accountants;
(k) waive, release, assign, settle or compromise any material rights, claims or litigation;
(l) pay, discharge or satisfy, or fail to pay, discharge or satisfy, satisfy any material claim, liability liabilities or obligation obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), ) other than in the ordinary course of business and consistent with past practicebusiness;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment any agreement or arrangement to do that materially limits or otherwise restricts the Company or any of the foregoingsuccessor thereto, or to authorizethat would, recommendafter the Effective Time, propose limit or announce an intention to do restrict the Surviving Corporation and its affiliates (including Parent) or any successor thereto, from engaging or competing in any line of the foregoing. 20 24business or in any geographic area; or
(n) make any material Tax election or settle or compromise any material federal, state, local or foreign Tax liability.
Appears in 1 contract
Conduct of Business of the Company. Agrigenetics and ---------------------------------------------------- Subsidiary. Except as required by otherwise expressly provided in this Agreement or with the prior written consent of ParentAgreement, during ---------- the period from the date of this Agreement hereof to the Effective TimeClosing, the Company willCompany, Agrigenetics and their respective subsidiaries and Subsidiary will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary course of business consistent with past practice practice, and the Company, Agrigenetics and their respective subsidiaries and Subsidiary will each use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toAgreement, prior to the Effective TimeClosing, without neither the Company and Agrigenetics on the one hand, nor Subsidiary on the other hand, will, except, with the prior written consent of Parentthe other:
(a) adopt any amendment 6.1.1 amend or propose to amend its certificate or articles of incorporation or by by-laws or comparable equivalent organizational documents;
(b) except 6.1.2 authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, deliver or authorize agree or commit to issue, sell or deliver (whether through the issuanceissuance or granting of options, reissuance warrants, commitments, subscriptions, rights to purchase or sale of (iotherwise) additional shares of capital any stock of any class, or securities convertible into capital stock of any class, class or any rights, warrants or options to acquire any convertible other securities or capital stockequity equivalents (including, other than without limitation, stock appreciation rights), except, in the issuance case of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof Company, pursuant to the terms thereof any Company Plan as in effect on as of the date hereof or as modified as contemplated by Section 2.10upon any conversion of Series A Convertible Preferred Stock or upon exercise of the Investor's Conversion Right, or (B) amend any of the conversion terms of Class A Common Shares, any such securities or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares agreements outstanding on as of the date hereof;
(c) 6.1.3 split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock (other than between dividends or distributions by a directly or indirectly wholly owned subsidiary of the Company), or redeem, repurchase or otherwise acquire any of the Company and its securities or any securities of the wholly-owned Subsidiariesits subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation incur any indebtedness for borrowed money or fringe benefits payable or to become payable to its directorsissue any debt securities or, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, assume, guarantee or endorse the obligations of any other person; (iiiii) except as the Company has previously informed Parent in writing, make any loans, advances or capital contributions to, or investments in, any other person except (other than, in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any case of the Material Contracts or waiveCompany, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any to subsidiaries of the accounting methods used by it unless required by GAAP, make any material Tax election Company); (iii) pledge or change otherwise encumber shares of its capital stock or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationits subsidiaries; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 1 contract
Conduct of Business of the Company. (a) Except as required by this Agreement or with provided in Section 4.2(b) to the prior written consent of Parentcontrary, during the period from the date of this Agreement to the Effective TimePre-Closing Period, the Company will, and will cause each of the Subsidiaries to, shall (i) conduct its operations only business in the ordinary and usual course of business consistent with past practice and will (ii) use its commercially reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those maintain satisfactory relations with lessors, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;Company.
(b) except for issuances of capital stock of During the Subsidiaries to the Company or a whollyPre-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of Closing Period,
(i) additional shares the Company shall keep in full force all insurance policies identified in Part 2.17 of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or Disclosure Schedule;
(ii) any other securities the Company shall (to the extent requested by ADAC) cause its officers to report regularly (but in respect of, in lieu of, or in substitution for, Shares outstanding on no event less frequently than weekly) to ADAC concerning the date hereofstatus of the Company's business;
(ciii) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series shares of its capital stock other than between any of the Company stock, and any of the wholly-owned Subsidiaries;
(d) splitshall not repurchase, combine, subdivide, reclassify or redeem, purchase redeem or otherwise acquire, or propose to redeem or purchase or otherwise acquire, reacquire any shares of its capital stock, stock or any of its other securities;
(eiv) except for the Company shall not sell, issue or authorize the issuance of (A) increases in salary, wages and benefits of non-executive officers any capital stock or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practiceother security, (B) increases in salaryany option, wages and benefits granted call, warrant or right to officers and employees of the Company acquire, or the Subsidiaries in conjunction with new hiresrelating to, promotions any capital stock or other changes in job status in the ordinary 19 23 course of business consistent with past practicesecurity, or (C) increases any instrument convertible into or exchangeable or exercisable for any capital stock or other security;
(v) neither the Company nor any of the Shareholders shall amend or permit the adoption of any amendment to or restatement of the Company's articles of incorporation or bylaws, or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(vi) the Company shall not form any subsidiary or acquire any equity interest or other interest in salaryany other entity;
(vii) the Company shall not make any capital expenditure, wages and benefits except for capital expenditures that, when added to employees all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate;
(viii) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Material Contract or (ii) amend or prematurely terminate, or waive any material right or remedy under, any Material Contract;
(ix) the Company shall not (A) acquire or enter into or commence any lease or license for any right or other asset from or with any other Person, (B) sell or otherwise dispose of, or enter into or commence any lease or license, for any right or other asset to any other Person, or (C) waive or relinquish any right, except for immaterial rights acquired, leased, licensed or disposed of by the Company pursuant to collective bargaining agreements entered into in Contracts that are not Material Contracts;
(x) the ordinary course Company shall not lend money to any person or entity, or incur or guarantee any indebtedness;
(xi) the Company shall not (A) establish, adopt or amend any Employee Benefit Plan, except (1) for the termination of business consistent with past practiceits 401(k) plan and/or SARSEP immediately prior to Closing and (2) as required by law or an applicable government agency, (iB) pay any bonus or make any profit-sharing or similar payment to increase the amount of the wages, salary, commissions, fringe benefits or other compensation or fringe benefits remuneration payable or to become payable to to, any of its directors, officers officers, consultants or employees (whether from the Company or any of the Subsidiaries)employees, or (iiC) pay hire any benefit not required by any existing plan or arrangement, or new employees.
(iiixii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or shall not change any of the Subsidiaries, its methods of accounting or (v) establish, adopt, enter into, or amend accounting practices in any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationrespect;
(fxiii) acquire, sell, lease, mortgage, encumber the Company shall not make any Tax election;
(xiv) the Company shall not commence or dispose settle or make any offer of settlement with respect to any assets Legal Proceeding;
(other than inventoryxv) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or Company shall not enter into any material commitment transaction or transaction take any other material action outside the ordinary course of business consistent or inconsistent with its past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companypractices;
(gxvi) (i) incurthe Company shall not pledge any of its assets or otherwise permit any of its assets to become subject to any lien, assume pledge, charge or pre-pay any long-term debt or incur or assume any short-term debtother encumbrance, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course for pledges of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except immaterial assets made in the ordinary course of business and consistent with the Company's past practice;practices; and
(ixvii) change the Company shall not agree or commit to take any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver actions described in clauses "(iii)" through "(xvi)" of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24this Section 4.2.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Conduct of Business of the Company. Except as for matters set forth in Section 5.01 of the Company Disclosure Letter or otherwise specifically permitted or required by this Agreement or required by applicable Law or with the prior written consent of ParentParent (which consent shall not be unreasonably withheld, during the period delayed or conditioned), from the date of this Agreement to the Effective Time, the Company willshall, and will shall cause each of the Subsidiaries Company Subsidiary to, conduct its operations only business in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best effortsand, to the extent consistent therewith, use commercially reasonable efforts to (i) preserve intact the its present business organization of the Company and each of the Subsidiariesorganization, to (ii) maintain in effect all Authorizations, (iii) keep available the services of its and their present officers and employeesemployees and (iv) preserve its present relationships with customers, suppliers, licensors, licensees, distributors and to preserve the good will of those others having material business relationships dealings with it. Without limiting the generality In addition, except for matters set forth in Section 5.01 of the foregoing, and except as Company Disclosure Letter or otherwise specifically permitted or required or permitted by this Agreement or as set forth in Section 6.01 required by applicable Law, from the date of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of declare, set aside or pay any classdividends on, or securities convertible into capital make any other distributions (whether in cash, stock or property) in respect of, any of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any for shares of its capital stock, or (iii) repurchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or options, warrants, convertible or exchangeable securities, stock-based units (performance based or otherwise) or other securities;
(e) rights to acquire any such shares of capital stock, except for (A) increases acquisitions of shares of Company Common Stock in salary, wages and benefits connection with the surrender of non-executive officers or employees shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of Company or the Subsidiaries in the ordinary course of business consistent with past practiceStock Options, (B) increases in salarythe withholding of shares of Company Common Stock to satisfy Tax obligations with respect to Company Stock Options, wages Company Restricted Stock Units and benefits granted to officers Company Performance Stock Units and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the acquisition by the Company of Company Stock Options, Company Restricted Stock Units or other awards granted pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any Stock Plans in connection with the forfeiture of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except awards in each case to in accordance with the extent required by terms of the applicable law award or regulationinstrument as in effect on the date of this Agreement;
(fb) acquireissue, sellgrant, leasedeliver or sell any shares of its capital stock or options, mortgagewarrants, encumber convertible or dispose exchangeable securities, stock-based units (performance based or otherwise) or other rights to acquire such shares, any Voting Company Debt or any other rights that give any person the right to receive any economic or voting interest of any assets (a nature accruing to the holders of Company Common Stock, other than inventorythe issuance of Company Common Stock upon the exercise of Company Stock Options or Company Warrants or the settlement of Company Restricted Stock Units or Company Performance Stock Units, in each case in accordance with the terms of the applicable plan, award or instrument as in effect on the date of this Agreement (or, if later, the date the applicable award or instrument is granted), provided that in all respects such terms shall be consistent with the terms of awards of the same type outstanding as of the date of this Agreement;
(c) amend its certificate of incorporation, by-laws or securities with a valueother comparable organizational documents, except, in the case of Company Subsidiaries, for amendments that would not reasonably be expected to, individually or in the aggregate, be material to the Company and the Company Subsidiaries, taken as a whole, or materially impede or delay the consummation of the Transactions;
(d) acquire or agree to acquire, in excess a single transaction or a series of related transactions, whether by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person (other than the Company or any Company Subsidiary), if the aggregate amount of consideration paid or transferred by the Company and the Company Subsidiaries would exceed $20.0 million1,000,000;
(e) except as required pursuant to the terms of any Company Benefit Plan in effect on the date of this Agreement, (i) adopt, enter into, establish, terminate, materially amend or modify any collective bargaining agreement or material Company Benefit Plan, (ii) grant to any director or executive officer of the Company or any Company Subsidiary any increase in compensation, (iii) grant to any employee of the Company or any Company Subsidiary any increase in the target amount of his or her annual cash bonus, (iv) make salary increases that, in the case aggregate, exceed 5% of rolling stockall employees’ annual base salaries and base wages (based upon the amounts of base salaries and wages as of the date hereof), (v) grant to any director or $3.0 million executive officer of the Company or any Company Subsidiary any increase in the case of other assets severance or securitiestermination pay, or (vi) enter into any commitment employment, consulting, severance or termination agreement with any director of the Company or any Company Subsidiary or with any employee of the Company or any Company Subsidiary whose annual base salary exceeds, or would exceed, $300,000, (vii) hire, or agree to do hire, any employee, other than in the ordinary course consistent with past practice or (viii) take any action to accelerate any rights or benefits under any Company Benefit Plan; provided that neither Section 5.01(b) nor the foregoing clauses of this Section 5.01(f) shall restrict the Company or any of the foregoing Company Subsidiaries from entering into or enter into any material commitment making available to newly hired employees or transaction outside to employees, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary business, plans, agreements, benefits and compensation arrangements (including incentive grants);
(f) make any change in accounting methods, principles or practices materially affecting the Company reported consolidated assets, liabilities or another wholly-owned Subsidiary results of operations of the Company, except as may be required by concurrent changes in (i) GAAP (or any authoritative interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by Law, including Regulation S‑X under the Securities Act;
(g) sell, divest, lease (i) incuras lessor), assume license, sublicense, abandon, waive, relinquish or preotherwise dispose of (including through any “spin-pay off” or by permitting any long-term debt rights in Intellectual Property to lapse), or incur pledge, encumber or assume otherwise subject to any short-term debtLien (other than a Permitted Lien), except any properties or assets that are material, individually or in the aggregate, to the Company and the Subsidiaries may incurCompany Subsidiaries, assume taken as a whole, except (i) sales or preother dispositions of (A) inventory and (B) excess or obsolete properties or assets, in each case, in the ordinary course of business, (ii) the granting of non-pay debt exclusive licenses for Intellectual Property in the ordinary course of business consistent pursuant to agreements with past practice under existing lines contract manufacturers, contract research organizations and other service providers where the license is incidental to and not the primary purpose of credit, the agreement or (iiiii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations abandonments of any other person except patent applications in the ordinary course of business consistent with past practiceprosecution, where a continuation, continuation-in-part, request for continued examination or divisional application (or foreign equivalent of any of the foregoing) is filed;
(h) adopt or implement any stockholder rights plan or similar arrangement;
(i) adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary;
(j) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (except for short-term borrowings incurred in the ordinary course of business), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (iiiii) make any loans, advances or capital contributions to, or investments in, any other person except Person, other than to or in (A) the Company or any Company Subsidiary or (B) any acquisition not in violation of clause (d) above, and other than extensions of trade credit and advances of expenses to employees, in each case in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiarybusiness;
(hk) modify, amend or terminate any other than in accordance with the Company’s capital expenditure budget as set forth in Section 5.01(k) of the Material Contracts Company Disclosure Letter, make or waive, release agree to make any capital expenditure or assign any rights expenditures that in the aggregate are in excess of $1,000,000;
(l) except as required by Law or claims thereunder, except as otherwise is in the ordinary course of business and consistent with past practice;
business, (iA) make, rescind or change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change settle or revoke compromise any material Tax election already made, adopt, request liability or consent refund; (B) make any material change to any new accounting method or accounting period used for Tax purposes that has a material effect on Taxes; (C) file a material amended Tax accounting method, change Return; (D) enter into a closing agreement with any Governmental Entity regarding any material Tax accounting method unless required by applicable lawliability or assessment; or (E) settle, enter into any material closing agreement, settle any material Tax claim or assessment compromise or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentsurrender a right to a material Tax refund;
(jm) adopt enter into, terminate or modify or amend in a plan of complete manner that is materially adverse to the Company, or partial liquidationwaive or release any material rights under any Specified Contract or any Contract that, dissolutionif existing on the date hereof, mergerwould have been a Specified Contract;
(n) settle, consolidationor offer or propose to settle, restructuring, recapitalization any Proceeding involving or other reorganization of against the Company or any of the Company Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions material to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of Company and the Company contained herein inaccurate in any material respect atSubsidiaries, or taken as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationa whole; or
(mo) enter into an agreementauthorize, contract, commitment commit or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (AveXis, Inc.)
Conduct of Business of the Company. (a) Except as required by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted contemplated by this Agreement or as set forth in Section 6.01 of on Schedule 7.1, during the Company Disclosure StatementExecutory Period, the Company will shall and shall cause each other Group Company to (and the Blocker Sellers shall cause each Blocker Entity to), except as consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed; provided, that if the Company has directed such request for Buyer’s consent to the Persons identified by Buyer on Schedule 7.1(a) and Buyer does not respond to the Company’s or Seller Representative’s request for consent within five (5) Business Days of such request (except as related to Tax matters), consent shall be deemed to have been provided) or as required by applicable law or COVID-19 Measures, (x)
(1) conduct its business in all material respects in the Ordinary Course of Business (including any conduct that is reasonably related, complementary or incidental thereto) and (2) use commercially reasonable efforts to maintain the Company’s business organizations, assets and relationships with its material business relationships (including customers and suppliers) in all material respects and (y) not:
(i) (A) amend or propose to amend any provision of its Governing Documents or (B) split, combine or reclassify the equity securities of a Purchased Entity;
(ii) make, declare or pay any dividend or distribution (whether in cash or in kind) in respect of its equity interests, except dividends and will not permit distributions by a Purchased Entity to any other Purchased Entity, or repurchase or redeem any equity interests (except from former employees pursuant to pre-existing repurchase rights of a Group Company);
(iii) make, change, or rescind any material election relating to Taxes, amend any material Tax Return, surrender any material right or claim to a refund of Taxes, consent to any extension or waiver of the Subsidiaries tostatute of limitations period applicable to any Taxes, Tax Returns or claims for Taxes, or enter into any closing agreements with respect to Taxes or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit, or controversy relating to Taxes;
(iv) enter into, terminate, accelerate, cancel, renew (other than on substantially similar terms in the Ordinary Course of Business), amend in any material respect, grant a material waiver under or otherwise modify in any material respect any Material Contract or any contract that would be a Material Contract if entered into prior to the Effective Timedate of this Agreement; provided, without that the prior written consent foregoing shall not prohibit (A) allowing any such contract to lapse at the end of Parent:
the current term thereof in the Ordinary Course of Business consistent with past practice or (aB) adopt the entry into, or amendment or modification of, any amendment contract in the Ordinary Course of Business consistent with past practice and in a manner that is not detrimental to its certificate the business of incorporation or by laws or comparable organizational documentsthe Group Companies;
(bv) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, pledge, grant, transfer or authorize the issuance, reissuance or sale of (i) additional shares of capital stock dispose of any classequity securities, or securities convertible into capital stock of any classequity securities, or any other rights to purchase any Purchased Entity’s equity securities or become a party to any subscriptions, warrants, rights, warrants or options to acquire any options, convertible securities or capital stockother agreements or commitments of any character relating to the issued or unissued equity securities of any Purchased Entity or grant stock appreciation rights;
(vi) make any material change in the policies of such Purchased Entity with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables;
(vii) make any material change in its cash management practices or in the accounting methods, principles or practices used by such Purchased Entity, including with respect to terms and timing of sales, credit, billing and collections with respect to customers and purchases and payments with respect to vendors, except as required by law or GAAP;
(viii) sell, lease, transfer, assign, or otherwise dispose of any of its material tangible assets or mortgage, pledge, or impose any Lien (other than the issuance a Permitted Lien) upon any of Common Shares pursuant to: its material tangible assets;
(ix) (A) sell, assign, convey, mortgage, pledge, or impose any Lien (other than a Permitted Lien), transfer or dispose of any Group Company IP Rights, or (B) license any Group Company IP Rights (other than non-exclusive licenses to end-user customers in the exercise Ordinary Course of Options outstanding on Business);
(x) abandon, allow to lapse or fail to maintain any Group Company IP Rights, except for any abandonment or lapse of, or failure to maintain, any non-material Group Company IP Rights, in the Ordinary Course of Business consistent with past practice, where the Group Companies reasonably determine that it is in the best interest of the Group Companies to do so;
(xi) enter into, amend, modify or terminate any Employee Benefit Plan or any other plan, agreement or arrangement that would be an Employee Benefit Plan if in effect as of the date hereof of this Agreement (other than entrance into at will offer letters or individual consulting agreements in the Ordinary Course of Business and that in each case are terminable by the Company without the payment of severance other than as required by applicable law), except as required (A) by applicable laws or (B) pursuant to the terms thereof and conditions of any Employee Benefit Plan as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on this Agreement that has been made available to Buyer prior to the date hereof;
(cxii) declarehire or offer to hire any employee with a base salary of $100,000 or above, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect terminate the employment of any class or series of its capital stock employees other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquirefor cause, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, negotiate to enter into, or amend into any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance works council or other employee benefit plan, agreement, trust, fund, policy labor agreement or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationarrangement;
(fxiii) acquireeffectuate a “plant closing” or “mass layoff” as those terms are defined in WARN or other similar termination event involving multiple employees or other service providers;
(xiv) except in accordance with the capital budget of the Company, sellwhich has been provided to Buyer prior to the date hereof, leasecommit or authorize any commitment to make any capital expenditures, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregateincluding expenditures for capitalized software, in excess of $20.0 million, 1,000,000 in the case of rolling stockaggregate, or $3.0 million fail to make material capital expenditures in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent accordance with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companysuch budget;
(gxv) (i) incur, assume initiate any suit or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assumesettle, guaranteepay, endorse discharge or otherwise become liable satisfy any suit where such settlement, payment, discharge or responsible (whether directly, contingently satisfaction would involve a cash payment in excess of $1,000,000 or otherwise) for impose any injunctive or other non-monetary or equitable restrictions or limitations upon the obligations operations of the business of any other person except Group Company, in each case, whether before or after the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned SubsidiaryClosing;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jxvi) adopt a plan of complete or partial liquidation, arrangement, dissolution, mergermerger or consolidation of any Purchased Entity, consolidationfile a petition in bankruptcy under any provisions of federal or state bankruptcy law on behalf of any Purchased Entity or consent to the filing of a bankruptcy petition against any Purchased Entity under any similar law;
(xvii) incur, restructuring, recapitalization guaranty or other reorganization of the Company modify any Funded Indebtedness or incur or grant any of the Subsidiaries lien on any property (other than Ordinary Course of Business draws under any existing revolving line of credit or other existing debt facility for (A) working capital purposes in an amount not to exceed $250,000 or (B) to pay all or any portion of the Mergerpurchase price for a Pending Acquisition or for budgeted capital expenditures set forth in a business plan provided to Buyer prior to the date hereof);
(kxviii) payenter into a new line of business or abandon or discontinue any existing line of business;
(xix) create any Subsidiary of any Purchased Entity (other than in connection with a Pending Acquisition);
(xx) other than in respect of the Pending Acquisitions, discharge acquire by merger or satisfyconsolidation with, or fail to paypurchase substantially all of the equity interests or assets of, discharge or satisfyotherwise acquire, any claimassets or business of any corporation, liability partnership, association or obligation other business organization or division thereof with a value of or for consideration in excess of $1,000,000;
(contingent xxi) except as may be required by applicable law or otherwiseany Employee Benefit Plan as in effect on the date of this Agreement that has been made available to Buyer prior to the date hereof and except for any amounts that would be treated as a Transaction Expense hereunder, accelerate the vesting of amounts due under any Employee Benefit Plan, or the timing or amount of funding required under any Employee Benefit Plan or otherwise increase the compensation, severance (other than as set forth on Schedule 7.8), perquisites or benefits payable to any employee, independent contractor or other individual service provider of any Purchased Entity (other than in the Ordinary Course of Business);
(xxii) pay any amount to any Seller or any of its Affiliates (including any management fees, bonuses, severances, change-in-control, transaction, termination, indemnity or retention payments (or similar compensation or benefits), monitoring fees, service or directors’ fees, royalties, rent, license fees or other compensation of any kind), other than in (A) pursuant to any contracts made available to Buyer that are scheduled on Schedule 3.6(a), 3.10(a) or 3.18, (B) to any Seller (or a Seller’s Affiliate) who is an employee of a Group Company pursuant to their employment arrangements made available to Buyer prior to the ordinary course of business and consistent with past practicedate hereof or otherwise disclosed on the Schedules attached hereto or (C) any amounts that would be treated as a Transaction Expense hereunder;
(lxxiii) takewaive, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger indemnify (other than in accordance with the terms thereof Governing Documents of the Group Companies), assume or materially delay such consummationdischarge the liability of any Seller or any of its Affiliates; or
(mxxiv) enter into an agreementauthorize, contractcommit or agree, commitment whether orally or arrangement in writing, to do any of the foregoing.
(b) During the Executory Period, each Blocker Seller shall cause the Blocker Entities not to take any action or engage in any operations other than (i) as expressly required by this Agreement, (ii) in connection with compliance with legal requirements relating to authorizeTaxes or (iii) activities in the ordinary course reasonably related to the beneficial ownership of Blocker Equity and Company Units.
(c) During the Executory Period, recommend, propose or announce an intention the Company will use its reasonable best efforts to do seek Buyer’s input with respect to acquisition financing for any Pending Acquisition to be consummated after the date hereof in excess of the foregoing. 20 24$10,000,000.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Tower Corp /Ma/)
Conduct of Business of the Company. (a) Except as required expressly contemplated by this Agreement and except in cases where, at or after such time as the designees of the Purchaser constitute a majority of the members of the Board of Directors of the Company and the failure to comply with the prior written consent of Parentcovenants set forth in this SECTION 5.1 results from actions, or omissions to act, taken or authorized by such designees, during the period from the date of this Agreement to the Effective Time, :
(i) Each of the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only business solely in the ordinary course of business consistent with past practice and practices.
(ii) Neither the Company nor any of its subsidiaries will intentionally take or willfully omit to take any actions that results in or could reasonably be expected to result in, a Company Material Adverse Effect.
(iii) The Company will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the Subsidiariesits subsidiaries, to keep available the services of its and their present officers and employeeskey employees and consultants, and to preserve the good will of those maintain satisfactory relationships with customers, agents, reinsurers, suppliers, and other persons having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:or its subsidiaries.
(a) adopt Without limiting the provisions of SECTION 5.1(A) or as otherwise expressly provided in this Agreement, neither the Company nor any amendment to of its certificate of incorporation or by laws or comparable organizational documents;subsidiaries will:
(bi) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale dispose of (i) additional shares of capital stock of any classclass (including the Class A/B Shares) of the Company or any of its subsidiaries, or securities convertible into capital stock of or exchangeable for any classsuch shares or securities, or any rights, warrants or options to acquire any convertible securities such shares or capital stocksecurities, other than the issuance of Common Class A/B Shares pursuant to: (A) the issued upon exercise of Options outstanding on the date hereof pursuant to options disclosed in SCHEDULE 3.3., in each case in accordance with the terms thereof as in effect disclosed on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or SCHEDULE 3.3;
(ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase purchase, or otherwise acquire, or propose to redeem or purchase purchase, or otherwise acquire, any of its outstanding capital stock, or other securities of the Company or any of its subsidiaries;
(iii) split, combine, subdivide, or reclassify any of its capital stock or declare, set aside, make, or pay any dividend or distribution on any shares of its capital stockstock except for dividends or distributions to the Company and its subsidiaries from their respective subsidiaries;
(iv) sell, pledge, dispose of, or encumber any of its other securities;
(e) assets, except for (A) increases in salarysales, wages and benefits of non-executive officers pledges, dispositions, or employees of the Company or the Subsidiaries encumbrances in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of practices or between the Company and its subsidiaries;
(v) incur or the Subsidiaries in conjunction with new hires, promotions modify any indebtedness or other changes in job status in the ordinary 19 23 course of business consistent with past practiceissue or sell any debt securities, or (C) increases in salaryassume, wages and benefits to employees guarantee, endorse, or otherwise as an accommodation become absolutely or contingently responsible for obligations of the Company pursuant to collective bargaining agreements entered into any other person, or make any loans or advances, other than in the ordinary course of business consistent with past practicepractices;
(vi) adopt or amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other employee benefit agreements trusts, plans, funds, or other arrangements for the benefit or welfare of any director, officer, or employee, or (iexcept for normal increases in the ordinary course of business that are consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company) increase in any manner the compensation or fringe benefits payable or to become payable to its directorsof any director, officers or employees (whether from the Company or any of the Subsidiaries)officer, or (ii) employee or pay any benefit not required by any existing plan or arrangementarrangement (including, without notation, the granting or (iiivesting of stock options or stock appreciation rights) or take any action or grant any severance or termination pay (except pursuant to benefit not expressly required under the terms of any existing agreements, plans or policies and as required by such agreementstrusts, plans or polices)plans, funds, or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, such arrangements or enter into any commitment contract, agreement, commitment, or arrangement to do any of the foregoing foregoing; or enter into make or agree to make any material commitment payments to any directors, officers, agents, contractors, or transaction outside the ordinary course of business consistent with past practice other than transactions between employees relating to a wholly-owned Subsidiary and the Company change or another wholly-owned Subsidiary potential change in control of the Company;
(gvii) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used acquire by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuringor acquisition of stock or assets any corporation, recapitalization partnership, or other reorganization business organization or division or make any investment either by purchase of the Company stock or any of the Subsidiaries securities, contributions to capital (other than the Mergerto wholly-owned subsidiaries), property transfer, or purchase of any material amount of property or assets, in any other person;
(kviii) payexcept as required by this Agreement, discharge adopt any amendments to their respective charters or satisfy, bylaws or fail to pay, discharge or satisfy, equivalent organizational documents;
(ix) take any claim, liability or obligation (contingent or otherwise), action other than in the ordinary course of business and consistent with past practicepractices, to pay, discharge, settle, or satisfy any claim, liability, or obligation (absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise);
(lx) takechange any method of accounting or accounting practice used by the Company or any of its subsidiaries, except for any change required by reason of a concurrent change in generally accepted accounting principles;
(xi) revalue in any respect any of its assets, including, without limitation, writing down the value of its portfolio or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices;
(xii) authorize any new capital expenditure or expenditures that individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000;
(xiii) make any tax election, settle or compromise any federal, state, or agree local tax liability or consent to commit the extension of time for the assessment or collection of any federal, state, or local tax;
(xiv) settle or compromise any pending or threatened suit, action, or claim material to takethe Company and its subsidiaries taken as a whole or relevant to the transactions contemplated by this Agreement;
(xv) enter into any agreement, arrangement, or understanding to do any of the foregoing actions in this SECTION 5.1, including any agreement, arrangement, or understanding resulting in or providing for a sale of any assets of the Company (other than a sale of assets in the ordinary course of business and consistent with past practices) or a merger or other liquidation, sale, or disposition of the Company; or
(xvi) voluntarily take any action or willfully omit to take any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would could make any representation or warranty of the Company contained herein inaccurate in ARTICLE III untrue or incorrect in any material respect atat any time, or including as of any time prior to, the Effective Time, or that would materially impair the ability date of this Agreement and as of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any time of consummation of the foregoingOffer, or to authorize, recommend, propose or announce an intention to do any as if made as of the foregoing. 20 24such time.
Appears in 1 contract
Conduct of Business of the Company. (a) Except as required by this Agreement or with provided in Section 4.2(b) to the prior written consent of Parentcontrary, during the period from the date of this Agreement to the Effective TimePre-Closing Period, the Company will, and will cause each of the Subsidiaries to, shall (i) conduct its operations only business in the ordinary and usual course of business consistent with past practice and will (ii) use its commercially reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those maintain satisfactory relations with lessors, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;Company.
(b) except for issuances of capital stock of During the Subsidiaries to the Company or a whollyPre-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of Closing Period,
(i) additional shares the Company shall keep in full force all insurance policies identified in Part 2.17 of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or Disclosure Schedule;
(ii) any other securities the Company shall (to the extent requested by ADAC) cause its officers to report regularly (but in respect of, in lieu of, or in substitution for, Shares outstanding on no event less frequently than weekly) to ADAC concerning the date hereofstatus of the Company's business;
(ciii) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series shares of its capital stock other than between any of the Company stock, and any of the wholly-owned Subsidiaries;
(d) splitshall not repurchase, combine, subdivide, reclassify or redeem, purchase redeem or otherwise acquire, or propose to redeem or purchase or otherwise acquire, reacquire any shares of its capital stock, stock or any of its other securities;
(eiv) except for the Company shall not sell, issue or authorize the issuance of (A) increases in salary, wages and benefits of non-executive officers any capital stock or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practiceother security, (B) increases in salaryany option, wages and benefits granted call, warrant or right to officers and employees of the Company acquire, or the Subsidiaries in conjunction with new hiresrelating to, promotions any capital stock or other changes in job status in the ordinary 19 23 course of business consistent with past practicesecurity, or (C) increases any instrument convertible into or exchangeable or exercisable for any capital stock or other security;
(v) neither the Company nor any of the Sellers shall amend or permit the adoption of any amendment to or restatement of the Company's articles of incorporation or bylaws, or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(vi) the Company shall not form any subsidiary or acquire any equity interest or other interest in salaryany other entity;
(vii) the Company shall not make any capital expenditure, wages and benefits except for capital expenditures that, when added to employees all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate;
(viii) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Material Contract or (ii) amend or prematurely terminate, or waive any material right or remedy under, any Material Contract;
(ix) the Company shall not (A) acquire or enter into or commence any lease or license for any right or other asset from or with any other Person, (B) sell or otherwise dispose of, or enter into or commence any lease or license, for any right or other asset to any other Person, or (C) waive or relinquish any right, except for immaterial rights acquired, leased, licensed or disposed of by the Company pursuant to collective bargaining agreements entered into in Contracts that are not Material Contracts;
(x) the ordinary course Company shall not lend money to any person or entity, or incur or guarantee any indebtedness;
(xi) the Company shall not (A) establish, adopt or amend any Employee Benefit Plan, except (1) for the termination of business consistent with past practiceits 401(k) plan and/or SARSEP immediately prior to Closing and (2) as required by law or an applicable government agency, (iB) pay any bonus or make any profit-sharing or similar payment to increase the amount of the wages, salary, commissions, fringe benefits or other compensation or fringe benefits remuneration payable or to become payable to to, any of its directors, officers officers, consultants or employees (whether from the Company or any of the Subsidiaries)employees, or (iiC) pay hire any benefit not required by any existing plan or arrangement, or new employees.
(iiixii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or shall not change any of the Subsidiaries, its methods of accounting or (v) establish, adopt, enter into, or amend accounting practices in any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationrespect;
(fxiii) acquire, sell, lease, mortgage, encumber the Company shall not make any Tax election;
(xiv) the Company shall not commence or dispose settle or make any offer of settlement with respect to any assets Legal Proceeding;
(other than inventoryxv) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or Company shall not enter into any material commitment transaction or transaction take any other material action outside the ordinary course of business consistent or inconsistent with its past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companypractices;
(gxvi) (i) incurthe Company shall not pledge any of its assets or otherwise permit any of its assets to become subject to any lien, assume pledge, charge or pre-pay any long-term debt or incur or assume any short-term debtother encumbrance, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course for pledges of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except immaterial assets made in the ordinary course of business and consistent with the Company's past practice;practices; and
(ixvii) change the Company shall not agree or commit to take any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver actions described in clauses "(iii)" through "(xvi)" of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24this Section 4.2.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the Effective Time, the Company will, and each Subsidiary will cause each of the Subsidiaries to, conduct its respective operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its reasonable best effortspractice, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the SubsidiariesSubsidiary will use all reasonable efforts to preserve intact its respective business organizations, to maintain its present and planned business, to keep available the services of its and their present respective officers and employeesemployees and to maintain satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, physicians, consultants, customers, and to preserve the good will of those others having business relationships with it. The Company will promptly advise Parent orally and in writing of any material change in the management, present or planned business, properties, liabilities, results of operations, or financial condition of the Company or any Subsidiary. Without limiting the generality of the foregoing, and except as otherwise required expressly provided in or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toAgreement, prior to the Effective Time, neither the Company nor any Subsidiary will, without the prior written consent of Parent:
(a) adopt any amendment to amend its certificate Articles of incorporation Incorporation or by laws or comparable organizational documentsBylaws;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, pledge, or authorize deliver (whether through the issuanceissuance or granting of additional options, reissuance warrants, commitments, subscriptions, rights to purchase, or sale otherwise other than in the ordinary course of (ibusiness consistent with past new hire practices) additional shares of capital any stock of any class, class or any securities convertible into capital shares of stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, class (other than the issuance of the number of shares of Company Common Shares pursuant to: (A) Stock indicated in Section 3.3 hereof upon the exercise in accordance with the current terms of Options the stock options listed in Schedule 3.3 hereof as outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofthis Agreement);
(c) split, combine, or reclassify any shares of its capital stock, declare, set aside aside, or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify stock; or redeem, purchase redeem or otherwise acquire, or propose to redeem or purchase or otherwise acquire, acquire any shares of its capital stock, stock or other securities; or amend or alter any material term of any of its outstanding securities; (d) other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries than in the ordinary course of business and consistent with past practice, (B) increases in salarycreate, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtindebtedness for borrowed money, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse endorse, or otherwise become liable or responsible (whether directly, contingently contingently, or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, person; or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loansperson; or create, advances, capital contributions incur or investments between assume any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make Lien on any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentasset;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 1 contract
Samples: Merger Agreement (Physio Control International Corp \De\)
Conduct of Business of the Company. (a) Except for matters set forth in Section 5.01(a) of the Company Disclosure Letter or as required otherwise expressly contemplated by this Agreement or required by applicable Law or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, shall conduct its operations only business in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the Subsidiariesits present organization, to keep available the services of its and their present officers and assets, employees, Authorizations, contractors and to preserve the good will of those relationships with customers, distributors, strategic partners, Governmental Entities, licensors, licensees and others having material business relationships dealings with it. Without In addition, without limiting the generality of the foregoing, and except for matters set forth in Section 5.01(a) of the Company Disclosure Letter or as otherwise required or permitted expressly contemplated by this Agreement or as set forth in Section 6.01 required by applicable Law, from the date of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior this Agreement to the Effective Time, the Company shall not do any of the following without the prior written consent of Parent:
(ai) adopt (A) declare, set aside or pay any amendment to dividends on, or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock or other Equity Interests, (B) split, combine or reclassify any of the Subsidiaries to the Company its capital stock or a wholly-owned Subsidiary, issue, reissue other Equity Interests or sell, issue or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series for shares of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practiceEquity Interests, or (C) increases directly or indirectly redeem, repurchase or otherwise acquire any Equity Interests in salarythe Company, wages and benefits except for (1) acquisitions of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to employees pay the exercise price of such Company Stock Options in accordance with their respective terms in effect at such time, (2) the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to Company Stock Options, Company RSUs or the Company pursuant to collective bargaining agreements entered into Warrant in accordance with their respective terms in effect at such time or (3) the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from acquisition by the Company of Company Stock Options or any Company RSUs in connection with the forfeiture of the Subsidiaries), or such awards in accordance with their respective terms in effect at such time;
(ii) pay issue any benefit not required by any existing plan Equity Interests, other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options, purchase options under the Company ESPP or arrangementpurchase rights under the Company Warrant, or upon the settlement of Company RSUs, in each case outstanding as of the date of this Agreement and in accordance with their respective terms in effect at such time;
(iii) grant any severance amend its certificate of incorporation, bylaws or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or other comparable organizational documents;
(iv) enter into any employment propose or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (reorganization, other than the Merger);
(kv) payacquire (A) in a single transaction or a series of related transactions, discharge whether by merging or satisfyconsolidating with, or fail to payby purchasing Equity Interests in or assets of, discharge or satisfyby any other manner, any claimbusiness or any corporation, partnership, limited liability company, joint venture, association or obligation other business organization or division thereof or any other Person, (contingent B) any assets or otherwiseproperties (other than as set forth in the Company’s fiscal year 2018 and fiscal year 2019 operating plan included in Section 5.01(a)(v) of the Company Disclosure Letter (the “Company Operating Plan”), other than acquisitions of raw materials or supplies in the ordinary course of business consistent with past practice or new capital expenditures, which shall be subject to the limitations of clause (xii) below), if the amount of consideration paid or transferred by the Company would exceed $50,000 individually, or $100,000 in the aggregate for all such transactions or (C) any Equity Interests in any entity that has a class of securities (or American Depositary Receipts representing such securities) listed or quoted on any securities exchange or securities quotation system;
(vi) establish any Person that would constitute a subsidiary or affiliate of the Company;
(vii) except as required by the terms of any Company Benefit Plan as in effect on the date hereof or to the extent required by applicable Law: (A) adopt, enter into, terminate or amend any collective bargaining agreement; (B) adopt, enter into, terminate or amend any Company Benefit Plan, other than in respect of broad-based Company Benefits Plans (1) in the ordinary course of business consistent with past practice and (2) in a manner that does not materially increase the costs or benefits thereunder; (C) increase in any manner the compensation, bonus or fringe or other benefits of any employee, officer, director or other service provider, other than such increases in respect of employees whose annual base salary is less than $200,000 or employees with a title below Senior Director, in either case in the ordinary course of business consistent with past practice; (D) enter into or materially amend any employment, change in control, severance, retention or similar Contract with any officer, director, employee or other service provider of the Company (other than offer letters providing for at-will employment with newly-hired employees who are hired in the ordinary course of business that do not contain any equity or equity-based compensation, change in control, severance, retention or similar arrangements); (E) grant any awards under any Company Benefit Plan (including grants of Company Stock Options, Company RSUs and other stock or stock-based awards) or waive any conditions on any awards under any Company Benefit Plan; (F) take any action to accelerate the payment of any compensation or benefit under any Company Benefit Plan; or (G) change any actuarial or other assumption used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions are made or the basis on which contributions are calculated;
(viii) (A) terminate the employment of any employee above the level of Director or with an annual base salary in excess of $150,000, other than due to such individual’s death, disability or for cause (each as determined by the Company in the ordinary course of business) or (B) hire any individual above the level of Director or with an annual base salary in excess of $150,000;
(A) change its fiscal year or revalue any of its material assets or (B) make any change in accounting methods, principles or practices used by it, except as may be required (1) by GAAP or (2) by applicable Law, including Regulation S-X under the Securities Act;
(x) sell, lease or sublease (as lessor or sublessor), license (as licensor) or otherwise dispose of, or pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien), any properties or assets, except sales, leases, licenses or other dispositions (A) of obsolete assets in the ordinary course of business consistent with past practice or (B) of properties or assets (other than Company Intellectual Property) with de minimis or no book value;
(xi) (A) incur, redeem, repurchase, prepay, defease, guarantee, assume or otherwise become liable for or modify in any material respects the terms of any Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (B) make any loans, advances or capital contributions to, or investments in (including by purchase of stock or securities, property transfers or purchase of property or assets of any Person or otherwise), any other Person, other than (1) to or in the Company or (2) pursuant to any acquisition not in violation of clause (v) above, and other than extensions of trade credit and advances of expenses to employees, in each case in the ordinary course of business consistent with past practice;
(lxii) takemake any capital expenditure or expenditures, or agree incur any obligations or liabilities in connection therewith, which, individually, is in excess of $150,000 or, in the aggregate, are in excess of $300,000 (other than as reflected in the Company Operating Plan);
(xiii) make or change any Tax election (other than any election described in Section 965(h) of the Code; provided that the conduct with respect to commit any such election shall be governed by Section 6.10(b)), change any Tax accounting method or period, file any amended Tax Return, enter into any closing agreement with respect to takeTaxes, request any Tax ruling, waive or extend the statute of limitations in respect of a material amount of Taxes or settle or compromise any material Tax liability or refund;
(A) materially amend or modify, or renew, extend or voluntarily terminate, or waive or release any material rights under, any Specified Contract (other than the ABX License Agreements) or any Contract that would be a Specified Contract if in effect on the date of this Agreement, (B) enter into any Contract that would be a Specified Contract if in effect on the date of this Agreement or (C) amend or modify, or renew, extend or voluntarily terminate, or waive or release any rights under either of the ABX License Agreements;
(xv) enter into or amend any Contract if, pursuant to the terms of such Contract or amendment, the consummation of any of the Transactions (alone or in combination with any other event) or compliance by the Company with the provisions hereof will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancelation or acceleration of any obligation, or give rise to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or assets of the Company under, or require Parent to license or transfer any of its material Intellectual Property or other material assets under, or give rise to any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of such Contract;
(xvi) (A) settle any pending, potential or threatened Proceeding if such settlement would require any payment by the Company or receipt of any payment from a third party in excess of $100,000 or would obligate the Company to take any material action or impose any material restrictions on the business of the Company or (B) commence any comparable Proceeding against a third party;
(xvii) (A) assign, sell, lease, license, dispose, cancel, abandon, grant rights to or fail to renew, maintain or diligently pursue applications for, or defend, any Company Intellectual Property or (B) disclose to any third party, other than representatives of Parent or under a confidentiality agreement, any Trade Secrets included in the Company Intellectual Property in a way that results in the loss of intellectual property protection for such Company Intellectual Property;
(xviii) cancel, terminate or modify in any material respect, or take any action that would could permit cancellation, termination or is reasonably likely to result in material modification of, any of the conditions insurance policy material to the Merger set forth in Article VII Company;
(xix) enter into any real property lease or any of the conditions to the Offer not being satisfiedmodify, amend, renew, extend, waive or would make any representation or warranty of the Company contained herein inaccurate in exercise any material respect atright or remedy under or terminate any Lease, or as other than renewals of any time prior to, Lease in existence on the Effective Time, or that would materially impair date hereof in the ability ordinary course of the Company to consummate the Merger in accordance business consistent with the terms thereof or materially delay such consummationpast practice; or
(mxx) enter into an agreementauthorize, contract, commitment commit or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Endocyte Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of Parentas set forth in Schedule 6.01, during the period from the date of this Agreement to the Effective Time, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toSchedule 6.01, prior to the Effective Time, neither the Company nor any of it subsidiaries, as the case may be, will, without the prior written consent of Parent:
the Purchaser, (ai) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell, pledge or sellencumber, or authorize or propose the issuance, reissuance sale, pledge or sale encumbrance of (iA) additional any shares of capital stock of any classclass (including the shares of Common Stock), or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company or capital stockany of its subsidiaries for such shares, other than the issuance shares of Common Shares pursuant to: (A) the Stock issuable upon exercise of Options currently outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10Options, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares for shares of Common Stock outstanding on the date hereof;
; (cii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or redeem, purchase or otherwise acquire, any of its outstanding securities (including the shares of Common Stock); (iii) split, combine or reclassify any shares of its capital stock, stock or declare or pay any dividend or distribution on any shares of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees capital stock of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, Company; (Biv) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans agreements or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of arrangements in effect on the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case date hereof which have been disclosed to the extent required by applicable law Purchaser, authorize any capital expenditure in excess of $500,000 in the aggregate, make any acquisition or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose disposition of any a material amount of assets (other than inventory) or securities with securities, enter into or amend or terminate any contract, material to the business of the Company and its subsidiaries taken as a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stockwhole, or $3.0 million in release or relinquish any contact rights or claims, material to the case of other assets or securities, or enter into any commitment to do any business of the foregoing Company and its subsidiaries taken as a whole; (v) pledge or enter into encumber any material commitment or transaction outside assets of the Company except in the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
business; (gvi) (i) incur, assume or pre-pay incur any long-term debt for borrowed money or incur or assume any short-term debt, debt for borrowed money in an aggregate amount in excess of $100,000.00 except that the Company and the Subsidiaries may incur, assume or pre-pay for debt incurred in the ordinary course of business consistent with past practice under existing lines (including, without limitation, to fund working capital needs; (vii) propose or adopt any amendments to the Articles of creditIncorporation or By-Laws of the Company; (viii) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries; (iiix) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company in the ordinary course of business and consistent with past practice, or ; (iiix) make any loans, advances or capital contributions to, or investments in, any other person except (other than loans or advances to subsidiaries and customer loans or advances to employees in the ordinary course of business consistent accordance with past practice and practices); (xi) except as required by applicable laws, adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, severance, termination, employment or other employee benefit plan, agreement, trust, fund, policy or other arrangement for loansthe benefit or welfare of any employee or director or former employee or director or, advancesexcept as required by applicable laws, capital contributions increase the compensation or investments between fringe benefits of any wholly-owned Subsidiary and the Company employee or another wholly-owned Subsidiary;
pay any employee or pay any benefit not required by any existing plan, arrangement or agreement; (hxii) modifymake any tax election or settle or compromise any federal, amend state, local or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunderforeign income tax liability, except in the ordinary course of business and consistent with past practice;
; or (ixiii) change agree in writing or otherwise to take any of the accounting methods used by it unless foregoing actions. Following the date of this Agreement, the Company will review its financing documents to determine if the consent of any third party is required by GAAPin connection with the transactions contemplated hereby. If following such review, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for Company becomes actually aware that any such claim or assessment;
(j) adopt a plan of complete or partial liquidationconsent is required, dissolutionit will so notify the Purchaser, mergerand the parties hereto shall use their respective best efforts to secure such consent; provided, consolidationhowever, restructuring, recapitalization or other reorganization of that for this purpose "best efforts" shall not require the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail Purchaser to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate payment in order to secure any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24consents.
Appears in 1 contract
Conduct of Business of the Company. Except as required provided in Section 6.08 hereof or as otherwise contemplated by this Agreement or with the prior written consent of ParentParent or as set forth on Schedule 4.08 or 4.13, during the period from the date of this Agreement to the Effective TimeOffer Purchase Closing, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its all reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the SubsidiariesCompany, to keep available the services of its and their present officers and key employees, and to preserve the good will goodwill of those having business relationships with it. Without limiting the generality of the foregoing, and except as provided in Section 6.08 hereof, or as otherwise required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt Adopt any amendment to its certificate Articles of incorporation Incorporation or by laws Bylaws or comparable organizational documents;
(b) except Except as contemplated by this Agreement and/or for issuances the issuance of capital stock of the Subsidiaries Common Shares pursuant to the Company exercise of Options or a wholly-owned SubsidiaryWarrants outstanding on the date hereof, issue, reissue reissue, pledge or sell, or authorize the issuance, reissuance reissuance, pledge or sale of (i) additional Common Shares or other shares of capital stock of any class, or securities convertible into Common Shares or other capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: stock (A) the exercise of Options outstanding on the date hereof including pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares1999 Plan), or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof;
(c) declareDeclare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;stock.
(d) splitSplit, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or redeem, purchase or otherwise acquire, any shares of its Common Shares or any other capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make Make any loans, advances or capital contributions to, or investments in, any other person except Person;
(f) Fail to (i) maintain the Real Property in the ordinary course of business a manner consistent with past practice practice, (ii) pay when due all Taxes, water and except sewer rents, assessments and insurance premiums affecting the Real Property, other than those being contested in good faith for loanswhich appropriate reserves have been established on the Company's books and records, advances(iii) timely comply with the terms and provisions of all Leases, capital contributions other than those being contested in good faith for which appropriate reserves have been established on the Company's books and records, contracts and agreements relating to or investments between any wholly-owned Subsidiary affecting the Real Property and the Company use and operation thereof, in each case;
(g) Enter into, establish, adopt, amend or another wholly-owned Subsidiaryrenew any material employment, consulting, severance or similar agreements or arrangements with any director, officer or employee; grant any salary or wage increase (other than as may be required by law); or establish, adopt, amend, or increase benefits under, any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, welfare benefit contract, plan or arrangement (other than as may be required by law);
(h) Enter into any labor or collective bargaining agreement, memorandum of understanding, grievance settlement or any other agreement or commitment to or relating to any labor union;
(i) Take any action that, if taken after March 31, 1999 but prior to the date hereof, would have caused the representations and warranties contained in Article IV to be untrue in any material respect; or
(j) Waive, modify, amend or terminate any of the Material Contracts or waivestandstill, release or assign any rights or claims thereunderconfidentiality, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization exclusivity or other reorganization similar agreement (each a "Exclusivity Agreement") to which the Company is a party and which was entered into in connection with the sale process undertaken by the Company to identify a purchaser of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than that resulted in the ordinary course execution of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24this Agreement.
Appears in 1 contract
Conduct of Business of the Company. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically required by the terms of this Agreement or Agreement), the Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and use its and their respective reasonable best efforts to preserve intact their current business organizations, keep available the prior written consent services of Parenttheir 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. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective TimeTime of the Merger, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will shall not, and will shall not permit any of the its Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentMergerCo:
(a) adopt declare, set aside or pay any amendment dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its certificate of incorporation or by laws or comparable organizational documentsparent in accordance with applicable law;
(b) except 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 issuances shares of its capital stock;
(c) purchase, redeem or otherwise acquire any shares of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue any of its Subsidiaries or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or other securities convertible into capital stock of any class, thereof or any rights, warrants or options to acquire any such shares or other securities, except for the cash-out of Company Stock Options (as provided in Section 3.2.3); in full or partial payment of the exercise price payable by such holder upon exercise of Company Stock Options outstanding on the date of this Agreement;
(d) authorize for issuance, 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 capital stock, any other securities or equity equivalents (including without limitation stock appreciation rights) (other than the issuance of Company Common Shares pursuant to: (A) Stock upon the exercise of Company Stock Options outstanding on the date hereof pursuant to of this Agreement and in accordance with their present terms (such issuances, together with the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion acquisitions of Class A shares of Company Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
Stock permitted under clause (c) declareabove, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose being referred to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiesherein as "Permitted Changes"));
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees the case of the Company or any subsidiary, amend its certificates or articles of incorporation, by-laws or other comparable charter or organizational documents;
(f) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Subsidiaries 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 permitted by Section 6.1 of the Disclosure Schedule, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets other than any such properties or assets the value of which do not exceed two million individually and ten million in the aggregate, except 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, (B) increases in salary, wages and benefits granted issue or sell any debt securities or warrants or other rights to officers and employees acquire any debt securities of the Company or the Subsidiaries in conjunction with new hiresany of its Subsidiaries, promotions guarantee any debt securities of another person, enter into any "keep well" or other changes in job status in agreement to maintain any financial statement condition of another person or enter into any arrangement having the ordinary 19 23 course economic effect of business consistent with past practice, or (C) increases in salary, wages and benefits to employees any of the Company pursuant to collective bargaining agreements entered into foregoing, except for short-term borrowings and for lease obligations, in each case incurred in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company and other than loans to employees in the ordinary course of business not to exceed $25,000 in any one case or $500,000 in the aggregate;
(j) pay, discharge or satisfy any claims (including claims of stockholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), except for the payment, discharge or satisfaction, (a) of liabilities or obligations in the ordinary course of business consistent with past practice and except for loansor in accordance with their terms as in effect on the date hereof or (b) claims settled or compromised to the extent permitted by Section 6. 1 (n), advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release release, grant, or assign transfer any rights of material value or claims thereunder, except modify or change in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke respect any material Tax election already madeexisting license, adoptlease, request or consent to any new material Tax accounting methodPermit, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization contract or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise)document, other than in the ordinary course of business and consistent with past practice;
(lk) takeadopt a plan of merger, consolidation, restructuring, recapitalization or agree to commit to take, any action that would reorganization or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII complete a partial liquidation or any of the conditions to the Offer not being satisfied, resolutions providing for or would make any representation authorizing such a liquidation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; ora dissolution,
(m1) enter into an any new collective bargaining agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24;
Appears in 1 contract
Samples: Merger Agreement (Sunbeam Corp/Fl/)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement hereof to the Effective TimeClosing Date, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will shall not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentAcquiror:
(a) adopt any amendment to amend its certificate Certificate of incorporation Incorporation or by laws or comparable organizational documentsBylaws;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities . stock or property or any combination thereof) in respect of its capital stock, except for cash dividends declared and paid consistent with the Company’s past practice (except that (i) any class Subsidiary of the Company other than PBC or series a Broadcasting Subsidiary may declare and pay dividends that are payable to the Company or to any other Subsidiary of the Company, (ii) PBC or any Broadcasting Subsidiary may declare and pay dividends in cash and cash equivalents that are payable to the Company or to any other Subsidiary of the Company and (iii) PBC may declare and pay a dividend of all of the capital stock of Pulitzer Sports Inc. to the Company) or redeem or acquire any of its securities other than for cash;
(c) except pursuant to the terms of the Company Class B Common Stock, the Company Option Plans, or the Employee Stock Purchase Plan, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other than between any securities in respect of, in lieu of the Company and any or in substitution of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(ed) except for (Ax) increases in salary, wages and benefits of non-executive officers or employees of to the event that the Company or the Subsidiaries is acting in the ordinary course of business consistent with past practice, (B) increases or is otherwise released therefrom as described in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, Section 2.02 or (Cy) increases in salary, wages and benefits any investment or acquisition relating to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of newspaper business consistent with past practiceor any activity related thereto, (i) increase the compensation or fringe benefits payable or to become payable to its directorscreate, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtIndebtedness, except that other than the New Company and the Subsidiaries may incurDebt, assume or pre-pay debt not currently outstanding (including obligations in the ordinary course respect of business consistent with past practice under existing lines of creditcapital leases), (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, . contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, Person or (iii) make any loans, advances or capital contributions to, or investments in, any Person other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company than Newco or another wholly-owned Subsidiary;
(he) modifyexcept pursuant to the terms of the Company Class B Common Stock, the Company Option Plans, or the Employee Stock Purchase Plan, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities or amend or terminate any of the Material Contracts or waive, release or assign terms of any rights or claims thereunder, except in securities outstanding at the ordinary course of business and consistent with past practicedate hereof;
(if) change terminate, amend, modify or waive compliance with any of the accounting methods used by it unless required by GAAP, make any material Tax election terms or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver conditions of the statute Contribution Agreement directly or indirectly respecting the Retained Assets or the Retained Liabilities or affecting the rights or obligations of limitations for any such claim or assessmentthe Company thereunder from and after the Effective Time;
(jg) adopt a plan subject to the fiduciary duties of complete the Board of Directors, terminate, amend, modify or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization waive any of the terms or conditions of any confidentiality agreement in effect as of the date hereof between the Company and any other reorganization prospective acquiror of the Company or Broadcasting, provided that the Company, PBC or any Broadcasting Subsidiary may waive, and Acquiror will not enforce after Closing, any restriction on employment of any employee of the Company, PBC or any Broadcasting Subsidiary who is not employed by the Acquiror, PBC or any Broadcasting Subsidiary at Closing or whose employment with any of the Subsidiaries (other than the Merger);them is terminated after Closing; or
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(lh) take, or agree to commit in writing or otherwise to take, any action of the foregoing actions or any other actions that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would (i) make any representation or warranty of the Company or Newco contained herein inaccurate in this Agreement untrue or incorrect, in any material respect atrespect, as of the date when made or as of the Closing Date, (ii) result in any time prior to, of the Effective Timeconditions to Closing in Article VII of this Agreement not being satisfied, or that would materially impair the ability of the Company to consummate the Merger (iii) be inconsistent, in accordance any material respect, with the terms thereof of this Agreement or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lee Enterprises, Inc)
Conduct of Business of the Company. Except (i) as required expressly contemplated by this Agreement Agreement, (ii) as agreed in writing by the Purchaser, or (iii) for the consummation of the financing of the transactions contemplated hereby pursuant to and in accordance with the prior written consent terms of Parentthe Financing Documents, during the period from the date of this Agreement hereof to the Effective Time, time persons designated or elected by the Purchaser or any of its respective affiliates shall constitute a majority of the Company willBoard, and neither the Company nor any of its Subsidiaries will cause each of the Subsidiaries to, conduct its operations only otherwise than in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required expressly provided in this Agreement, prior to the time persons designated or permitted elected by this Agreement the Purchaser or as set forth in Section 6.01 any of the Company Disclosure Statementrespective affiliates shall constitute a majority of the Board, the Company will not, and nor will not it permit any of the Subsidiaries to, prior to the Effective Timeits Subsidiaries, without the prior written consent of Parentthe Purchaser, to:
(a) adopt any amendment amend or propose to amend its certificate Certificate of incorporation Incorporation or by laws By-Laws or comparable organizational documentsthe Rights Agreement;
(bi) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (iA) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares (and the related Rights), in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to: (A) to the exercise or conversion of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10hereof, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares or any other capital stock of any class outstanding on the date hereofhereof or (ii) make any other changes in its capital structure;
(c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any class or series of its capital stock other than between securities or any securities of the Company and any of the wholly-owned its Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation incur or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, debt or issue any debt securities except that the Company and the Subsidiaries may incur, assume or pre-pay debt for borrowings under existing lines of credit in the ordinary course of business consistent with past practice under existing lines of credit, and in amounts not material to the Company and its Subsidiaries taken as a whole; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practicepractice and in amounts not material to the Company and its Subsidiaries, taken as a whole, and except for obligations of wholly owned Subsidiaries of the Company to the Company or to other wholly owned Subsidiaries of the Company; (iii) make any loans, advances or capital contributions to, or investments in, any other person except (other than to wholly owned Subsidiaries of the Company or customary loans or advances to employees in the ordinary course of business consistent with past practice and except in amounts not material to the maker of such loan or advance) or make any change in its existing borrowing or lending arrangements for loansor on behalf of any such person, advances, whether pursuant to an employee benefit plan or otherwise; (iv) pledge or otherwise encumber shares of capital contributions or investments between any wholly-owned Subsidiary and stock of the Company or another wholly-owned Subsidiaryany of its Subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon;
(he) modifyadopt a plan of complete or partial liquidation or adopt resolutions providing for the complete or partial liquidation, amend dissolution, consolidation, merger, restructuring or terminate recapitalization of the Company or any of its Subsidiaries;
(f) increase in any manner the Material Contracts compensation or waivefringe benefits payable or to become payable of any director, release or assign any rights or claims thereunderofficer or, except employee, except, in the case of employees, only for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, or pay or award any benefit not required by any existing plan or arrangement to any officer, director or employee (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units pursuant to the Stock Plans or other- wise), or grant any severance or termination pay to any officer, director or other employee of the Company or any of its Subsidiaries (other than as required by existing agreements or policies in Section 6.01 of the Company Disclosure Schedule), 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, or waive any performance or vesting criteria under any plan for the benefit or welfare of any current or former directors, officers or employees of the Company or its Subsidiaries or their beneficiaries or dependents (any of the foregoing being an "EMPLOYEE BENEFIT ARRANGEMENT"), except, in each case, to the extent required by applicable law or regulation;
(g) acquire, sell, transfer, lease, encumber or dispose of any assets outside the ordinary course of business consistent with past practice or any assets which in the aggregate are material to the Company and its Subsidiaries taken as a whole, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice which would be material to the Company and its Subsidiaries taken as a whole;
(h) except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(i) 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 practice;
(i) change any of the accounting methods used acquire (by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuringor acquisition of stock or assets) any corporation, recapitalization partnership or other reorganization of the Company business organization or division thereof or any of the Subsidiaries equity interest therein; (other than the Merger);
(kii) pay, discharge enter into any contract or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), agreement other than in the ordinary course of business consistent with past practice which would be material to the Company and its Subsidiaries taken as a whole; (iii) authorize any new capital expenditure or expenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $100,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited hereunder;
(k) make any Tax election (unless required by law), settle or compromise any Tax liability of the Company or any of its Subsidiaries or any pending or threatened suit, action or claim relating to any potential or actual Tax liability of the Company or any of its Subsidiaries, change any method of accounting for Tax purposes or file (other than in a manner consistent with past practice) any Tax Return;
(l) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its Subsidiaries or incurred in the ordinary course of business consistent with past practice;
(lm) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated without notice to the Purchaser except in the ordinary course -33- of business and consistent with past practice unless the Company shall have obtained a comparable replacement policy;
(n) settle or compromise any pending or threatened suit, action or claim (i) relating to the transactions contemplated hereby, (ii) involving Fremont Acquisition Company III, LLC and/or any of its affiliates ("Fremont") and the Company and/or any of its affiliates, (iii) involving Golden Cycle, LLC and/or any of its affiliates ("Golden Cycle") and the Company and/or any of its affiliates, or (iv) any other pending or threatened material suit, action or claim other than in the ordinary course of business;
(o) enter into any agreement of a nature that would be required to be filed as an exhibit to Form 10-K under the Exchange Act;
(p) take, or agree to commit in writing or otherwise to take, any of the actions described in Sections 6.1
(a) through 6.1(o) or any action that which would make any of the representations or is reasonably likely to warranties of the Company contained in this Agreement untrue or incorrect as of the date when made or would result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Tender Offer Conditions not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as required by this Agreement expressly provided for herein or with as set forth in Section 5.1 of the prior written consent of ParentDisclosure Schedule, during the period from the date of this Agreement to the Effective Time, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct act and carry on its operations only business in the ordinary course of business consistent with past practice and will and, to the extent consistent therewith, use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its current business organization of the Company and each of the Subsidiariesorganizations, to keep available the services of its and their present current key officers and employees, employees and to preserve the good will goodwill of those having engaged in material business relationships with itthe Company. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statementexpressly provided herein, the Company will shall not, and will shall not permit any of the its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(ai) adopt (A) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its outstanding capital stock (other than, with respect to a Subsidiary of the Company, to its certificate corporate parent), except regular quarterly dividends with respect to the Shares on the regular quarterly record date and at a rate less than or equal to the rate paid on the last quarterly dividend date, (B) split, combine or reclassify any of incorporation or by laws or comparable organizational documents;
(b) except for issuances of its outstanding capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, issue or authorize the issuanceissuance of any other securities in respect of, reissuance in lieu of or sale of (i) additional in substitution for shares of its outstanding capital stock, or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or capital stock, other than partial payment of the issuance of Common Shares pursuant to: (A) the exercise price payable by such holder upon exercise of Options outstanding on the date hereof pursuant to the extent required under the terms thereof of such Options as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(cii) declareissue, set aside or pay any dividend or other distribution (whether in cashsell, capital stockgrant, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase pledge or otherwise acquire, or propose to redeem or purchase or otherwise acquire, 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, other than upon the exercise of vested Options outstanding on the date of this Agreement;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) directly or indirectly acquire, make any investment (other than investments not exceeding $5.0 million in the aggregate) in, or make any capital contributions to, any person (other than a Subsidiary of the Company) other than in the ordinary course of business consistent with past practice;
(v) make any new capital expenditure or expenditures in excess of $10.0 million in the aggregate;
(vi) enter into, amend or terminate any Material Contract or any contract involving amounts in excess of $2.0 million per year other than in the ordinary course of business consistent with past practice;
(vii) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets, except for sales, pledges or other securitiesdispositions or encumbrances in the ordinary course of business consistent with past practice;
(eviii) except for (A) increases other than in salaryconnection with any action permitted by Section 3.2 or this Section 5.1, wages and benefits incur any indebtedness for borrowed money or guarantee any such indebtedness of non-executive officers another person, other than indebtedness owing to or employees guarantees of indebtedness owing to the Company or any direct or indirect wholly owned Subsidiary of the Company or (B) make any loans or advances to any other person, other than to the Subsidiaries Company or to any direct or indirect wholly owned Subsidiary of the Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under the Credit Agreement dated as of January 23, 1998, among the Company, Bank of America National Trust and Savings Association and the lenders named therein or under other credit facilities described in the Company's Form 10-K for the fiscal year ended December 31, 1999 in the ordinary course of business consistent with past practice;
(ix) grant or agree to grant to any director or officer or, other than in the ordinary course of business consistent with past practice, to any employee (B) increases other than employees who receive less than $200,000 in salary, wages and benefits granted to officers and employees of total annual cash compensation from the Company or any of its Subsidiaries), any increase in wages or bonus, severance, profit sharing, retirement (including any discretionary Company Contribution Amounts under the Subsidiaries in conjunction with new hiresERP), promotions deferred compensation, insurance or other changes in job status compensation or benefits to such officers and employees, 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 this Agreement, existing agreements or by law or other than in the ordinary 19 23 course of business consistent with past practice, or ;
(Cx) increases except as set forth in salary, wages this Agreement and benefits to employees of except as required under the existing Company pursuant to Plans and existing collective bargaining agreements entered agreements, 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, severance or similar agreement with any existing officers or, other than in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether other than employees who receive less than $200,000 in total annual cash compensation from the Company or any of the its Subsidiaries), except for severance agreements entered into to the extent required pursuant to severance plans existing on the date hereof;
(xii) make or rescind any material tax election or settle or compromise any material income tax liability of the Company or of any of its Subsidiaries with any Governmental Entity or settle any action, suit, claim, investigation or proceeding with any Government Entity (legal, administrative or arbitrative) in an amount in excess of $1.0 million;
(xiii) pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction (x) of any such claims, liabilities or obligations in the ordinary course of business or (iiy) pay any benefit of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its consolidated Subsidiaries or (z) other than settlements which involve solely the payment of money that would not result in an uninsured or underinsured payment by or liability of the Company in excess of $2.0 million in the aggregate above reserves established therefor on the books of the Company;
(xiv) except as disclosed in the Filed SEC Documents or required by a Governmental Entity, make any existing plan change in any method of accounting or arrangementaccounting practice or policy, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or generally accepted accounting principles;
(ivxv) enter into any employment agreement, understanding or commitment that restrains, limits or impedes the Company's ability to compete with or conduct any line of business, including, but not limited to, geographic limitations on the Company's activities;
(xvi) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance agreement with, any director, officer program or other program or effort concerning the termination of employment of employees of the Company or its Subsidiaries, PROVIDED, HOWEVER, that routine employee terminations shall not be considered subject to this clause (xvi);
(xvii) take any action, engage in any transaction or enter into any agreement which would cause any of the representations or warranties set forth in Section 4.1 to be untrue as of the Closing Date;
(xviii) revalue any material assets of the Company or any of the its Subsidiaries, including but not limited to writing down the value of inventory or (v) establish, adopt, enter into, writing off notes or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), accounts receivable other than in the ordinary course of business and consistent with past practice;
(l) takebusiness, except for any revaluation resulting from a change in circumstances or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or from those prevailing as of any time prior toMarch 31, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation2000; or
(mxix) enter into an agreement, contract, commitment or arrangement to do authorize any of the foregoingof, or commit or agree to authorizetake any of, recommend, propose or announce an intention the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1 except to do any of the foregoing. 20 24extent such action is otherwise expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ingersoll Rand Co)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent(1) The Company covenants and agrees that, subject to applicable law, during the period from the date of this Agreement to until the earlier of the Effective TimeTime and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of the Parent and the Purchaser or as required or permitted by this Agreement, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct its operations only business in the ordinary course of business consistent Ordinary Course and in accordance with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with it. Law.
(2) Without limiting the generality of Section 4.1(1), subject to Law, the foregoingCompany covenants and agrees that, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of the Parent and the Purchaser or as otherwise required or permitted by this Agreement or as set forth out in Section 6.01 the Budget, the Company shall use its reasonable commercial efforts to maintain and preserve intact the current business organization, assets, properties and business of the Company Disclosure Statementand its Subsidiaries, maintain in effect all material Authorizations of the Company, keep available the services of the present employees and agents of the Company will notand its Subsidiaries and maintain good relations with, and will not permit any of the goodwill of, employees, suppliers, customers, creditors and all other Persons having business relationships with the Company and its Subsidiaries toand, prior to the Effective Time, without except with the prior written consent of Parentthe Parent and the Purchaser, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
(a) adopt any amendment to amend its certificate of incorporation or by laws or comparable organizational documentsConstating Documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company split, combine, consolidate or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional reclassify any shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof undertake any capital reorganization or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof);
(c) in respect of redeem, repurchase, or otherwise acquire or offer to redeem, repurchase or otherwise acquire any class or series shares of its capital stock or reduce the stated capital in respect of the Common Shares or any other than between any shares of the Company and any of the wholly-owned its Subsidiaries;
(d) splitissue, combinegrant, subdividedeliver, reclassify or redeemsell, purchase pledge or otherwise acquireencumber, or propose to redeem authorize the issuance, grant, delivery, sale, pledge or purchase or otherwise acquire, other encumbrance of any shares of its capital stock, securities, options, warrants or similar rights exercisable or exchangeable for or convertible into such capital stock, of the Company or any of its other securitiesSubsidiaries, except for the issuance of Common Shares (i) issuable upon the exercise of the currently outstanding Company Options or (ii) pursuant to outstanding Company Warrants;
(e) except acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses;
(f) reorganize, amalgamate, combine or merge the Company with any other Person;
(g) adopt a plan of liquidation or resolutions providing for (A) increases in salary, wages and benefits of non-executive officers the liquidation or employees dissolution of the Company or any of its Subsidiaries;
(h) sell, pledge, lease, dispose of, surrender, lose the right to use, mortgage, license, encumber (other than Permitted Liens) or otherwise dispose of or transfer any assets of the Company or of any of its Subsidiaries or any interest in any assets of the Company or its Subsidiaries;
(i) make any capital expenditure or similar commitments;
(j) make any loan or advance to, or any capital contribution or investment in, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of, any Person;
(k) prepay any long-term indebtedness before its scheduled maturity or increase, create, incur, assume or otherwise become liable, in one transaction or in a series of related transactions, with respect to any indebtedness for borrowed money or guarantees thereof; provided that any indebtedness created, incurred, refinanced, assumed or for which the Company or any Subsidiary becomes liable in accordance with the foregoing shall be prepayable at the Effective Time without premium, penalty or other incremental costs (including breakage costs);
(l) enter into any interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or similar financial instruments;
(m) make any bonus or profit sharing distribution or similar payment of any kind except as may be required by the terms of a Contract listed in Section 4.1(2)(m) of the Company Disclosure Letter;
(n) grant any general increase in the ordinary course rate of business wages, salaries, bonuses or other remuneration of any Company Employees except as may be required by a Contract listed in Section 4.1(2)(n) of the Company Disclosure Letter;
(o) except as required by IFRS, make any change in the Company's methods of accounting;
(p) make any material Tax election, information schedule, return or designation, except as required by Law and in a manner consistent with past practice, settle or compromise any material Tax claim, assessment, reassessment or liability, file any amended Tax Return, enter into any material agreement with a Governmental Entity with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the extension or waiver of the limitation period applicable to any material Tax matter or materially amend or change any of its methods or reporting income, deductions or accounting for income Tax purposes except as may be required by Law;
(Bq) increases in salarycreate, wages and benefits granted enter into or increase any severance, change of control or termination pay to officers and employees (or amend any existing arrangement with) any Company Employee, director or executive officer of the Company or change the Subsidiaries in conjunction benefits payable under any existing severance or termination pay policies with new hiresany Company Employee, promotions director or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees executive officer of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, Company;
(r) except as required by Law: (i) increase adopt, enter into or amend any Employee Plan (other than entering into an employment agreement in the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from Ordinary Course with a new Company Employee who was not employed by the Company or any a Subsidiary on the date of the Subsidiariesthis Agreement), or ; (ii) pay any benefit not required by to any existing plan director or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries or to any Company Employee that is not required under the Subsidiariesterms of any Employee Plan in effect on the date of this Agreement; (iii) grant, accelerate, increase or otherwise amend any payment, award or other benefit payable to, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments inof, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions director or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization officer of the Company or any of its Subsidiaries or to any Company Employee; (iv) make any material determination under any Employee Plan that is not in the Subsidiaries Ordinary Course; or (other than v) take or propose any action to effect any of the Merger)foregoing;
(ks) paycancel, discharge waive, release, assign, settle or satisfycompromise any material claims or rights;
(t) commence, waive, release, assign, settle or compromise any litigation, proceedings or governmental investigations;
(u) amend or modify or terminate or waive any right under any Material Contract or enter into any contract or agreement that would be a Material Contract if in effect on the date hereof;
(v) except as contemplated in Section 4.8, amend, modify, terminate, cancel or let lapse any material insurance (or re-insurance) policy of the Company or any of its Subsidiaries in effect on the date of this Agreement, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the terminated, cancelled or lapsed policies for substantially similar premiums are in full force and effect;
(w) in respect of any assets of the Company or its Subsidiaries, waive, release, surrender, let lapse, grant or transfer any material right or value or amend, modify or change, or agree to amend, modify or change, in any material respect any existing material Authorization, right to use, lease, contract, production sharing agreement, Intellectual Property, or other material document;
(x) abandon or fail to diligently pursue any application for any material Authorizations, licenses, leases, or registrations or take any action, or fail to paytake any action, discharge that could lead to the termination of any material Authorizations, licenses, leases or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practiceregistrations;
(ly) takeenter into or amend any Contract with any broker, finder or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationinvestment banker; or
(mz) enter into an agreementauthorize, contractagree, commitment resolve or arrangement otherwise commit, whether or not in writing, to do any of the foregoing.
(3) If, on or after the date of this Agreement, the Company declares or pays any dividend or other distribution on the Common Shares prior to authorizethe Effective Time, recommend, propose the Consideration per Common Share shall be reduced by a number of Parent Shares equal to the amount of such dividends or announce an intention to do any distributions as of the foregoing. 20 24record date thereof.
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentPurchaser, during the period from the date of this Agreement to the Effective Timeearlier of (i) such time as this Agreement is terminated in accordance with Section 7.01 or (ii) the Closing Date, the Company willshall (a) not engage in any business activities or operations, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will (b) use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact its organization and (c) not take any action which could adversely affect the business organization ability of the Company and each of parties to consummate the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with ittransactions contemplated by this Agreement. Without limiting the generality of the foregoing, foregoing and except as otherwise required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentPurchaser:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documentsbylaws;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, (i) issue, reissue reissue, sell, or sellconvey, or authorize the issuance, reissuance reissuance, sale or sale of conveyance of, (iA) additional shares of capital stock (or other ownership interests) of any classclass (including shares held in treasury), or securities convertible or exchangeable into capital stock (or other ownership interests) of any class, or any rights, warrants or options to acquire any such convertible or exchangeable securities or capital stock, stock (or other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10ownership interests), or (B) the conversion of Class A Common Shares, any Voting Debt; or (ii) make any other securities changes in respect ofthe capital structure of the Company; provided, however, that (y) the Company may issue three-year warrants to purchase an aggregate of 500,000 shares of Common Stock with an exercise price of $10.00 per share to certain of its current stockholders in lieu of, or for a purchase price of $.02 per warrant and (z) the Company may issue up to 10,000 shares of Common Stock in substitution for, Shares satisfaction of certain outstanding on the date hereofindebtedness;
(c) declare, set aside or pay any dividend or other actual, constructive or deemed distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between or otherwise make any of the Company and any of the wholly-owned Subsidiariespayments to stockholders in their capacity as stockholders;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to any of its present or former directors, officers officers, consultants or employees (whether from the Company or any of the Subsidiaries)employees, or (ii) pay or award any benefit not required by any existing plan or arrangementarrangement (including, without limitation, the granting of stock options, stock appreciation rights, phantom stock, shares of restricted stock or (iiiperformance units) or grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices)to, or (iv) enter into any employment employment, severance or severance other compensation agreement with, any director, officer officer, consultant or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, amend or amend waive any performance or vesting criteria or accelerate vesting or exercisability under any collective bargaining, bonus, bonus profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current present or former employeesdirector, except in each case to officer, consultant or employee (any of the extent required by applicable law or regulationforegoing being an “Employee Benefit Arrangement”);
(f) acquire, mortgage, encumber, license, sell, lease, mortgage, encumber lease or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companybusiness;
(g) (i) incur, assume assume, guarantee or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of creditindebtedness, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practiceperson, or (iii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), (iv) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, or (v) authorize or make capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryexpenditures;
(h) modify, amend settle or terminate compromise any of the Material Contracts suit or waive, release claim or assign any rights threatened suit or claims thereunder, except in the ordinary course of business and consistent with past practiceclaim;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do adopt a plan of complete or partial liquidation or dissolution of the Company;
(j) make any tax election not required by law or settle or compromise any material tax liability;
(i) waive any rights of substantial value, (ii) cancel or forgive any indebtedness owed to the Company or (iii) make any payment, direct or indirect, of any material liability of the Company before the same comes due in accordance with its terms;
(l) enter into or amend any contract or agreement;
(m) except as may be required as a result of a change in law or under GAAP, make any change in its methods, principles and practices of accounting, including tax accounting policies and procedures;
(n) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any assets, except with respect to the transactions contemplated by the Concurrent Contribution Agreement;
(o) enter into any joint venture, partnership or similar agreement;
(p) make any application or filing with any governmental agency or authority; or
(q) agree in writing or otherwise to take any of the foregoing. 20 24foregoing actions or any action which could cause any representation or warranty in this Agreement to be or become untrue or incorrect or could cause any condition to the consummation of the transactions contemplated hereby or thereby not to be satisfied.
Appears in 1 contract
Samples: Purchase Agreement (Sports Entertainment Enterprises Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the 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 required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation charter or by laws By-Laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue reissue, pledge or sell, or authorize the issuance, reissuance reissuance, pledge or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares Shares, in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to: (A) to the exercise of Options options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shareshereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the its wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, salary and wages granted to officers and benefits of non-executive officers or hourly employees of the Company or the Subsidiaries in conjunction with promotions or other changes in job status or normal compensation reviews in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay or award any benefit not required by any existing plan or arrangementarrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or (iiiperformance units pursuant to the Option Plan or otherwise) or grant any additional severance or termination pay to (except pursuant to existing agreements, plans or policies and other than as required by such agreements, plans existing agreements or policespolicies described in the Company Disclosure Statement), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, Subsidiaries or (v) establish, adopt, enter into, amend or amend waive any performance or vesting criteria under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employeesemployees (any of the foregoing being an "Employee Benefit Arrangement"), except in each case to the extent required by applicable law or regulation; provided, however, that nothing herein will be deemed to prohibit the payment of benefits as they become payable;
(f) except as set forth in the Company Disclosure Schedule, acquire, sell, lease, mortgage, encumber lease or dispose of any assets (other than inventory) or securities with a value, individually or in which are material to the aggregate, in excess of $20.0 million, in Company and the case of rolling stock, or $3.0 million in the case of other assets or securitiesSubsidiaries, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-wholly owned Subsidiary and the Company or another wholly-wholly owned Subsidiary of the CompanySubsidiary;
(g) except as set forth in the Company Disclosure Schedule (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume incur or pre-pay debt in the ordinary course of business in amounts and for purposes consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-wholly owned Subsidiary subsidiary of the Company and the Company or another wholly-wholly owned Subsidiary;; or
(h) modify, amend settle or terminate compromise any of the Material Contracts suit or waive, release claim or assign any rights threatened suit or claims thereunder, except in the ordinary course of business and consistent with past practiceclaim;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
, (li) takemodify, amend or agree to commit to taketerminate any contract, (ii) waive, release, relinquish or assign any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII contract (or any of the conditions Company's rights thereunder), right or claim, or (iii) cancel or forgive any indebtedness owed to the Offer Company or any of the Subsidiaries; provided, however, that the Company may not being satisfiedunder any circumstance waive or release any of its rights under any confidentiality agreement to which it is a party;
(j) make any Tax election not required by law or settle or compromise any Tax liability, in either case that is material to the Company and the Subsidiaries; or
(k) agree in writing or otherwise to take any of the foregoing actions prohibited under Section 5.01 or any action which would make cause any representation or warranty of the Company contained herein inaccurate in this Agreement to be or become untrue or incorrect in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24respect.
Appears in 1 contract
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 4.2 of the Company Disclosure StatementSchedule or except as expressly contemplated by this Agreement, the Company will notshall not do, and will not cause or permit any of the following, or allow, cause or permit any of its Subsidiaries toto do, prior to cause or permit any of the Effective Timefollowing, without the prior written consent of Parent:
(a) adopt Cause or permit any amendment to amendment, modification, alteration or rescission of its certificate or articles of incorporation incorporation, bylaws or by laws other charter or comparable organizational documents;
(b) except for issuances Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock (other than dividends or distributions by any wholly-owned Subsidiary of the Subsidiaries Company to the Company or a wholly-another wholly owned SubsidiarySubsidiary thereof) or split, issue, reissue combine or sell, reclassify any of its capital stock or issue or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any for shares of 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 to it or any of its other securitiesSubsidiaries and the acceptance of shares of Company Common Stock in payment of the exercise price or withholding taxes incurred by any option holder in connection with the exercise of stock options granted under a Company Stock Plan;
(ec) Grant any Rights with respect to the Company or any of its Subsidiaries, or accelerate, amend or change the period of exercisability or vesting of options or other rights granted under its stock plans or otherwise or authorize cash payments in exchange for any options or other rights granted under any of such plans, in each case except for (Aas otherwise required by such plans or any existing agreements set forth in Section 4.2(c) increases in salary, wages and benefits of non-executive officers or employees of the Company Disclosure Schedule;
(d) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or Rights with respect to the Company or any of its Subsidiaries, other than (i) the issuance of shares of Company Common Stock pursuant to the exercise of Company Options outstanding under the Company Stock Plans as of the date of this Agreement as set forth in Section 2.2(a) of the Company Disclosure Schedule, (ii) the issuance of shares of Company Common Stock pursuant to the exercise of the Warrants outstanding as of the date of this Agreement and (iii) pursuant to agreements existing as of the date of this Agreement as set forth on Section 4.2(d) of the Company Disclosure Schedule;
(i) Enter into any material lease for real property or material operating lease or (ii) sell, lease, license or otherwise dispose of or encumber any of its properties or assets which are material, individually or in the aggregate, to the business of the Company and its Subsidiaries (taken as a whole), except in each case in the ordinary course of business consistent with past practice, (B) increases practice and except for the sale of real estate owned in salary, wages and benefits granted to officers and employees accordance with current policies of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (Ccontracts set forth on Section 4.2(e) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into Disclosure Schedule with respect thereto;
(f) Other than in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or incur any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement indebtedness for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of creditborrowed money, (ii) assume, guarantee, endorse or otherwise as an accommodation become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person Person or (iii) cancel, release, assign or modify any material amount of indebtedness of any other Person;
(g) Make any capital expenditures, capital additions or capital improvements except (i) in the ordinary course of business consistent with past practice that do not exceed $250,000 individually or $1,000,000 in the aggregate over any twelve (12)-month period and (ii) pursuant to contracts or commitments set forth on Section 4.2(g) of the Company Disclosure Schedule;
(h) Other than in the ordinary course of business consistent with past practice, enter into any Material Contract;
(i) Adopt or amend in any manner that will materially increase the cost of the Company maintaining any Company Employee Benefit Plan (except as required by Laws and Regulations), (ii) enter into any employment agreement with any director or officer, (iii) pay any special bonus or special remuneration to any employee or director other than pursuant to existing agreements, other than in an amount not in excess of $10,000 individually or $100,000 in the aggregate, (iv) increase the salaries, wage rates, bonus, pension, welfare, severance, or other benefits or, pay any bonus (other than as permitted pursuant to clause (iii) of this Section 4.2(i)) to or make any equity awards to any of the directors, officers or employees of the Company or its Subsidiaries (other than increases in annual base salary on the anniversary of the employee's last increase, or in connection with a promotion, in each case in the ordinary course of business consistent with past practice), (v) except pursuant to Section 1.4 of this Agreement, take any action to accelerate the vesting or payment of any compensation or benefits under any Company Employee Benefit Plan, to the extent not already provided in any such plan, or (vi) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries;
(j) Grant or provide any severance, termination, change-in-control or similar pay to, or enter into any severance, termination, change-in-control or similar agreement with, any director, officer or employee, in each case, except payments made pursuant to written plans or agreements outstanding, or Company policies in effect on, the date of this Agreement and set forth on Section 4.2(j) of the Company Disclosure Schedule;
(k) Make any written communications to the officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are effected by the transactions contemplated by this Agreement without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed);
(l) Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company and its Subsidiaries (taken as a whole), or acquire or agree to acquire any equity securities of, or other equity interest in, any corporation, partnership, limited liability company, association or business organization which securities or equity interests acquired or agreed to be acquired would constitute greater than five percent (5%) of the outstanding securities or equity of such entity;
(m) Make any change to its financial accounting methods or practices, except as may be required by GAAP, Regulation S-X or other rule or regulation promulgated by the SEC;
(n) Other than in the ordinary course of business consistent with past practice or as required by applicable Laws and Regulations, make or change any material election in respect of Taxes, adopt or change in any material respect any accounting method in respect of Taxes, enter into any material closing agreement, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes;
(o) Except as required by applicable Laws and Regulations, or written rule, instruction or directive by a Governmental Entity which is furnished to Parent promptly following receipt thereof: (i) implement or adopt any material change in its risk management or hedging policies, procedures or practices or (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to risk;
(p) Other than in the ordinary course of business consistent with past practice, (i) sell, assign, or grant any security interest in any Intellectual Property owned by the Company or its Subsidiaries or Company IP Agreement, (ii) grant to any third party any license in, to or under any Intellectual Property owned by the Company or its Subsidiaries, (iii) develop, create, or invent any Intellectual Property jointly with any third party, (iv) disclose or allow to be disclosed to any Person any Intellectual Property not heretofore a matter of public knowledge, except pursuant to judicial or administrative process, (v) permit any item of Intellectual Property owned by the Company or one of its Subsidiaries (or any right, title or interest of the Company or any of its Subsidiaries in, to or under any other Intellectual Property) that is used or held for use in the business of the Company or any of its Subsidiaries as currently conducted or as currently proposed (by the Company or one of its Subsidiaries) to be conducted to lapse or to be abandoned, dedicated, or disclaimed, or (vi) fail to use commercially reasonable best efforts to perform all applicable filings, recordings, and other acts, and to pay all required fees and taxes, to maintain and protect its interest in each and every item of Intellectual Property owned, used, currently intended to be used, or held for use by the Company or any of its Subsidiaries;
(q) Settle any claim, action or proceeding, except for any claim, action or proceeding involving solely money damages in an amount, individually and in the aggregate for all such settlements, not more than $250,000 and that would not reasonably be expected to establish an adverse precedent or basis for subsequent settlements or require material changes in business practices;
(r) Make any loan or advance other than in the ordinary course of business consistent in all material respects with lending policies and practices as in effect on the date hereof;
(s) Grant annual restricted stock bonuses or, except in the ordinary course of business consistent with past practice, annual cash bonuses, other than as may be required pursuant to agreements existing as of the date of this Agreement;
(t) Enter into or (iii) make amend any loans, advances or capital contributions to, or investments in, agreements pursuant to which any other person except party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any of its products or technology;
(u) Materially reduce the amount of any insurance coverage provided by existing insurance policies;
(v) Revalue any of its assets other than in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless as required by applicable law, enter into any material closing agreement, settle any material Tax claim Laws or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentRegulations;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24
Appears in 1 contract
Samples: Merger Agreement (E Loan Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement hereof to the Effective Time, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its their respective operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toSchedule, prior to the Effective Time, none of the Company (acting through the Special Committee) or any of its subsidiaries will, directly or indirectly, without the prior written consent of ParentAcquisition:
(a) adopt any amendment to amend its certificate of incorporation incorporation, by-laws (or by laws similar documents) or comparable organizational documentsamend the Rights Agreement or redeem the rights issued thereunder;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, deliver or authorize agree or commit to issue, sell or deliver (whether through the issuanceissuance or granting of options, reissuance warrants, commitments, subscriptions, rights to purchase or sale of (iotherwise) additional any shares of capital stock of any class, or securities convertible into capital stock of any class, class or any rights, warrants or options to acquire any convertible securities or capital stockother securities, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof any employee benefit plan, option plan or agreement as in effect on as of the date hereof or as modified as contemplated by Section 2.10hereof, or (B) amend any of the conversion terms of Class A Common Shares, any such securities or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares agreements outstanding on as of the date hereof;
(c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any class or series of its capital stock other than between securities or any securities of the Company and any of the wholly-owned Subsidiariesits subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practicebusiness, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, indebtedness for borrowed money; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in wholly owned subsidiaries of the ordinary course of business consistent with past practice, Company; or (iii) make any loans, advances or capital contributions to, or investments in, any other person (other than to wholly owned subsidiaries of the Company);
(e) except in the ordinary course of business consistent with past practice and business, enter into, adopt or (except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(has may be required by law) modify, amend or terminate any 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 agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee, 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 Material Contracts date hereof (including, without limitation, the granting of stock options or waive, release or assign any rights or claims thereunder, performance units);
(f) except in the ordinary course of business and consistent with past practiceexcept pursuant to any agreements or arrangements in effect on the date hereof, acquire, sell, lease or dispose of any material amount of assets;
(i) change any of the accounting methods used acquire (by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuringor acquisition of stock or assets) any corporation, recapitalization partnership or other reorganization business organization or division thereof; (ii) enter into any contract or agreement other than in the ordinary course of business; (iii) authorize any expenditures not contemplated by the Company Company's business plan provided to Acquisition prior to the date hereof which individually is in excess of $1,000,000 or in the aggregate are in excess of $5,000,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any of the Subsidiaries (other than the Mergermatters set forth in this Section 6.01(i);
(kh) except in the ordinary course of business, pay, discharge or satisfysatisfy any claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course payment, discharge or satisfaction of business liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and consistent with past practice;its subsidiaries; or
(li) take, or agree to commit to take, any of the foregoing actions or any action that which would or is reasonably likely to result in make any of the conditions to the Merger set forth in Article VII representations or any of the conditions to the Offer not being satisfied, or would make any representation or warranty warranties of the Company contained herein inaccurate in any material respect at, this Agreement untrue or incorrect as of the date when made or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24a future date.
Appears in 1 contract
Samples: Merger Agreement (Transportation Technologies Industries Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parentexpressly provided for herein, during the period from the date of this Agreement to the Effective Time, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct act and carry on its operations only business in the ordinary course of business consistent with past practice and will and, to the extent consistent therewith, use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its current business organization of the Company and each of the Subsidiariesorganizations, to keep available the services of its and their present current key officers and employees, employees and to preserve the good will goodwill of those having engaged in material business relationships with itthe Company. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statementexpressly provided herein, the Company will shall not, and will shall not permit any of the its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(ai) adopt (A) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its outstanding capital stock (other than, with respect to a Subsidiary of the Company, to its certificate corporate parent), (B) split, combine or reclassify any of incorporation or by laws or comparable organizational documents;
(b) except for issuances of its out standing capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, issue or authorize the issuanceissuance of any other securities in respect of, reissuance in lieu of or sale of (i) additional in substitution for shares of its outstanding capital stock, or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or capital stock, other than partial payment of the issuance of Common Shares pursuant to: (A) the exercise price payable by such holder upon exercise of Options outstanding on the date hereof pursuant to the extent required under the terms thereof of such Options as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(cii) declareissue, set aside or pay any dividend or other distribution (whether in cashsell, capital stockgrant, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase pledge or otherwise acquire, or propose to redeem or purchase or otherwise acquire, 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, other than (A) upon the exercise of its other securitiesvested Options outstanding on the date of this Agreement and (B) the sale of up to 60,000 shares of Common Stock (and accompanying Rights) in accordance with the terms of the Employee Stock Purchase Plan consistent with past practice but only to the extent such shares are sold pursuant to elections made on or before June 30, 1999;
(eiii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) except for (Ato the extent contemplated by the agreements referred to in Section 5.1(iv) increases in salary, wages and benefits of non-executive officers or employees of the Company Disclosure Letter, directly or indirectly acquire, make any investment (other than investments not exceeding $1,000,000 in the aggregate) in, or make any capital contributions to, any person (other than a Subsidiary of the Company) other than in the ordinary course of business;
(v) make any new capital expenditure or expenditures in excess of $1,000,000 in the aggregate, other than as set forth in the Company's budget for capital expenditures made available to Parent or the Subsidiaries specific capital expenditures disclosed and set forth on Schedule 5.1 of the Disclosure Letter;
(vi) enter into, amend or terminate any Material Contract involving expenses of at least $1,000,000 per year other than in the ordinary course of business consistent with past practice;
(vii) directly or indirectly sell, (B) increases in salarypledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hiresexcept for sales, promotions pledges or other changes in job status in the ordinary 19 23 course of business consistent with past practice, dispositions or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into encumbrances in the ordinary course of business consistent with past practice;
(viii) (A) other than in connection with any action permitted by Section 5.1(iv), 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 the Company or any direct or indirect wholly owned Subsidiary of the Company or (iB) increase make any loans or advances to any other person, other than to the compensation or fringe benefits payable Company or to become payable any direct or indirect wholly owned Subsidiary of the Company and other than routine advances to its directorsemployees consistent with past practice, except, in the case of clause (A), for borrowings under the Credit Agreements (without increases in existing limits) in the ordinary course of business;
(ix) grant or agree to grant to any director, officer or employee (other than officers or and employees (whether who receive less than $200,000 in total annual cash compensation from the Company or any of the its Subsidiaries), any increase in wages or (ii) pay bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits to such officers and employees, or establish any new compensation or benefit not required by plans or arrangements, or amend or agree to amend any existing plan Company Plans, except as may be required under this Agreement, existing agreements or arrangement, or by law;
(iiix) grant any severance or termination pay (except pursuant to existing agreements, plans or policies as set forth in this Agreement and except as required by such agreementsunder the existing Company Plans, plans accelerate the payment, right to payment or polices)vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(ivxi) enter into or amend any employment employment, severance or severance similar agreement with, with any director, officer existing officers or employees (other employee of than officers and employees who receive less than $200,000 in total annual cash compensation from the Company or any of the its Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees), except in each case for severance agreements entered into to the extent required by applicable law or regulationpursuant to severance plans existing on the date hereof;
(fxii) acquire, sell, lease, mortgage, encumber make or dispose rescind any tax election or settle or compromise any income tax liability of the Company or of any assets of its Subsidiaries with any Governmental Entity or settle any action, suit, claim, investigation or proceeding with any Government Entity (other than inventorylegal, administrative or arbitrative) or securities with a value, individually or in the aggregate, an amount in excess of $20.0 million500,000;
(xiii) pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction (x) of any such claims, liabilities or obligations in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice or (y) of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its consolidated Subsidiaries or (z) other than transactions between a wholly-owned Subsidiary and settlements which involve solely the payment of money that would not result in an uninsured or underinsured payment by or liability of the Company or another wholly-owned Subsidiary in excess of $2,000,000 in the aggregate above reserves established therefor on the books of the Company;
(gxiv) (i) incurexcept as disclosed in the Filed SEC Documents or required by a Governmental Entity, assume make any change in any method of accounting or pre-pay any long-term debt accounting practice or incur or assume any short-term debtpolicy, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryas required by generally accepted accounting principles;
(hxv) modifyenter into any agreement, amend understanding or terminate commitment that materially restrains, limits or impedes the Company's ability to compete with or conduct any material line of business, including, but not limited to, geographic limitations on the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practiceCompany's activities;
(ixvi) change plan, announce, implement or effect any of the accounting methods used by it unless required by GAAPreduction in force, make any material Tax election or change or revoke any material Tax election already madelay-off, adoptearly retirement program, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization severance program or other reorganization program or effort concerning the termination of employment of employees of the Company or any of the Subsidiaries its Subsidiaries, provided, however, that routine employee terminations shall not be considered subject to this clause (other than the Mergerxvi);
(kxvii) pay, discharge amend or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate modify in any material respect atrespect, waive any rights under or as of terminate any time prior to, agreements existing on the Effective Time, or that would materially impair the ability of date hereof between the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationand NetRatings; or
(mxviii) enter into an agreement, contract, commitment or arrangement to do authorize any of the foregoingof, or commit or agree to authorizetake any of, recommend, propose or announce an intention the foregoing actions in respect of which it is restricted by the provisions of this Section 5.1 except to do any of the foregoing. 20 24extent such action is otherwise expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Niner Acquistion Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of ParentThe Company covenants and agrees that, during the period from the date of this Agreement hereof to the Effective Time, unless the Parent shall otherwise agree in writing, the business of the Company willshall be conducted only in, and will cause each of the Subsidiaries toCompany shall not take any action except in, conduct its operations only in the ordinary course of business consistent with past practice business; and will the Company shall use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the SubsidiariesCompany, to keep available the services of its the present officers, employees and their present officers and employees, consultants of the Company and to preserve the good will present relationships of those having the Company with customers, suppliers and other persons with which the Company has significant business relationships with itrelationships. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement, the Company, between the date of this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, directly or indirectly does, or proposes or commits to do, any of the following without the prior written consent of Parent:
(ai) adopt declare, set aside or pay any amendment to dividends on, or make any other distributions in respect of, any of its certificate capital stock, (ii) split, combine or reclassify any of incorporation its capital stock or by laws issue or comparable organizational documents;
authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (biii) except for issuances purchase, redeem or otherwise acquire any shares of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or other securities convertible into capital stock of any class, thereof or any rights, warrants or options to acquire any convertible such shares or other securities or capital stock, (other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofconnection with its employee stock purchase plan consistent with past practice);
(cb) declareauthorize for issuance, set aside issue, deliver, sell or pay any dividend agree or other distribution commit to issue, sell or deliver (whether in cashthrough the issuance or granting of options, capital stockwarrants, commitments, subscriptions, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, to purchase or otherwise acquireotherwise), or propose to redeem or purchase pledge or otherwise acquire, encumber any shares of its capital stock, any other voting securities or any of its securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securitiessecurities or equity equivalents (including without limitation stock appreciation rights);
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to of any of its directors, officers or employees (whether from the Company or any of the Subsidiaries)employees, or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay pay, or (except pursuant to existing agreementsiii) enter into any Employment Arrangement or similar agreement or arrangement with any present or former director level or other equivalent or more senior officer or employee, plans or policies and as required by such agreements, plans or polices)any other employee of the Company, or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, into or amend in any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance material respect or terminate any Plan or Employment Arrangement or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(fd) acquireamend its certificate of incorporation, sellby-laws or other comparable charter or organizational documents;
(e) acquire or agree to acquire (i) by merging or consolidating with, leaseor by purchasing a substantial portion of the stock or assets of, mortgageor by any other manner, encumber any business or dispose of any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any assets (other than inventory) or securities with a valuethat are material, individually or in the aggregate, in excess to the Company taken as a whole;
(f) sell, lease, dispose of, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing its properties or enter into any material commitment or transaction outside assets, except in the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Companybusiness;
(g) except as contemplated by the Memorandum and the Loan Agreements, (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debtindebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except that the Company and the Subsidiaries may incur, assume or pre-pay debt for borrowings incurred in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practiceLoan Agreement, or (iiiii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryperson;
(h) modify, amend authorize or terminate expend any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practicefunds for capital expenditures;
(i) change enter into, amend in any respect, terminate, rescind, waive in any respect or release any of the accounting methods used by it unless required by GAAP, make terms or provisions of any (i) Company Material Contract or (ii) any other agreement which is material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver the business of the statute of limitations for any such claim or assessmentCompany taken as a whole;
(j) knowingly violate or fail to perform any material obligation or duty imposed upon it by any applicable material federal, state or local law, rule, regulation, guideline or ordinance;
(k) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger)reorganization;
(kl) payrecognize any labor union (unless legally required to do so) or enter into or materially amend any collective bargaining agreement;
(m) except as may be required as a result of a change in law or in generally accepted accounting principles, discharge make any material change in its method of accounting;
(n) revalue in any material respect any of its material assets, including, without limitation, writing down the value of inventory or satisfy, writing-off notes or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), accounts receivable other than in the ordinary course of business and consistent with past practiceor as required by generally accepted accounting principles;
(lo) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions except to the Merger set forth extent required by law, make or revoke any Tax election or settle or compromise any Tax liability that is, in Article VII or any the case of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, material to the business, financial condition or results of operations of the Company taken as a whole or change (or make a request to authorizeany taxing authority to change) any material aspect of its method of accounting for tax purposes;
(p) except for claims covered by insurance, recommendsettle or compromise any litigation in which the Company is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, or settle or compromise any pending or threatened suit, action or claim;
(q) pay any liabilities or obligations (absolute, accrued, asserted, contingent or otherwise);
(r) take, propose to take, or announce an intention agree in writing or otherwise to do take, any of the foregoing. 20 24foregoing actions.
Appears in 1 contract
Conduct of Business of the Company. Except as required consented to by Parent, as disclosed in Section 5.1 of the Company Disclosure Schedule, or as contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement hereof to the Effective Time, neither the Company nor any of its subsidiaries will:
(a) amend its charter, articles or certificate of incorporation or bylaws (or other similar organizational or governing instruments);
(b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities convertible into or exchangeable for any stock or any equity equivalents (including, any stock options or stock appreciation rights), except for (i) the issuance of Shares upon the exercise of outstanding Company Stock Options, Company Warrants and will cause each of Convertible Notes and (ii) the Subsidiaries togrant to newly hired officers, conduct its operations only employees or agents (in the ordinary and usual course of business consistent with past practice practice) of additional Company Stock Options after the date hereof to purchase up to 50,000 additional Shares and will use its reasonable best efforts, and will cause each the issuance of Shares on the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documentsexercise thereof;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional split, combine or reclassify any shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or ; (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of its capital stock (other than any class dividends or series distributions payable to the Company or its subsidiaries); (iii) make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to stockholders in their capacity as such (other than between any distributions or payments to the Company or its subsidiaries); or (iv) redeem, repurchase or otherwise acquire any of the Company and its securities or any securities of any of the wholly-owned Subsidiariesits subsidiaries;
(d) splitadopt a plan of complete or partial liquidation, combinedissolution, subdividemerger, reclassify consolidation, restructuring, recapitalization or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiesreorganization (other than the Merger);
(e) except for (A) increases alter through merger, liquidation, reorganization, restructuring or in salary, wages and benefits any other fashion the corporate structure or ownership of non-executive officers or employees any subsidiary of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationCompany;
(f) acquire, sell, lease, mortgage, encumber (i) incur or dispose of assume any assets (indebtedness for borrowed money other than inventoryunder existing credit facilities (or any renewals, replacements or extensions that do not increase the aggregate commitments thereunder) or securities with a value, individually or except (A) in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary and usual course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(gB) (i) incur, assume in connection with any acquisition or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, capital expenditure permitted by this Section 5.1; (ii) 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 and usual course of business consistent with past practice, or and except for obligations of the wholly owned subsidiaries of the Company; (iii) make any loans, advances or capital contributions to, or investments in, any other person except (other than (A) any acquisition permitted by this Section 5.1, (B) loans, advances or capital contributions to or investments in wholly owned subsidiaries of the Company, (C) loans or advances to employees of the Company or any of its subsidiaries in the ordinary and usual course of business consistent with past practice or (D) extensions of credit to customers in the ordinary and except for loans, advances, usual course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital contributions or investments between any wholly-owned Subsidiary and stock of the Company or another wholly-owned Subsidiaryits subsidiaries; or (v) create or assume any Lien on any material assets of the Company or any of its subsidiaries other than in the ordinary and usual course of business consistent with past practice;
(g) (i) increase in any manner the compensation or fringe benefits of any director, officer or employee except in the ordinary and usual course of business consistent with past practice or pay any benefit not required by any Company Benefit Plan or Company Employee Arrangement as in effect as of the date hereof or grant any completion bonuses or change of control payments in respect of the Merger; (ii) except in the ordinary and usual course of business consistent with past practice, promote or change the classification or status in respect of or hire any employee or individual; or (iii) make any contributions or other deposits to any trust that is not qualified under Section 501(a) of the Code;
(h) modifyacquire, amend sell, lease or terminate dispose of any material assets outside the ordinary and usual course of business consistent with past practice or any assets which in the Material Contracts aggregate are material to the Company and its subsidiaries taken as a whole, other than extensions or waive, release or assign any rights or claims thereunder, except renewals in the ordinary and usual course of business and consistent with past practice;
(i) except as may be required as a result of a change any of the accounting methods used by it unless required by in Law or in GAAP, make any material Tax election change in any of the accounting principles or change practices used by it;
(j) revalue in any material respect any of its assets, including, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business consistent with past practice or as required by GAAP;
(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) other than in the ordinary and usual course of business consistent with past practice, enter into any material contract or agreement or amend in any material respect any of the Company Material Contracts or the agreements referred to in Section 3.18; (iii) authorize any new capital expenditure or expenditures which are not provided for in the Company's current capital expenditure plan and which, individually, is in excess of $25,000 or, in the aggregate, are in excess of $50,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited hereunder;
(l) make or revoke any material Tax election already madeelection, adopt, request or consent to any new material Tax accounting method, change settle or compromise any material Tax accounting method unless required by applicable lawliability, enter into any material closing agreement, settle any material Tax claim or assessment change (or consent make a request to any material taxing authority to change) any aspect of its method of accounting for Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentpurposes;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(km) pay, discharge or satisfysatisfy any material claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary and usual course of business and consistent with past practicepractice or in accordance with their terms of liabilities reflected, or reserved against in, the consolidated financial statements, including notes thereto, of the Company and its subsidiaries or incurred since the date of such financial statements or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement related to a business combination involving the Company to which the Company or any of its subsidiaries is a party;
(ln) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(o) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its subsidiaries or any successor thereto or that could, after the Effective Time, limit or restrict the Surviving Corporation and its affiliates (including Parent) or any successor thereto, from engaging or competing in any line of business or in any geographic area;
(p) fail to comply in any material respect with any Law applicable to the Company, its subsidiaries, or their respective assets;
(q) enter into any direct or indirect arrangements for financial subsidies from a Governmental Entity;
(r) adopt, enter into, amend, alter or terminate (partially or completely) any Company Benefit Plan or Company Employee Arrangement except as contemplated by this Agreement or to the extent required by applicable Law;
(s) enter into any contract with an officer, director, employee, agent or other similar representative of the Company or any of its subsidiaries that is not terminable, without penalty or other liability, upon not more than sixty (60) calendar days' notice;
(t) except as permitted by Sections 6.6, 8.3 and 8.5 hereof, take, propose to take, or agree to commit in writing or otherwise to take, any of the actions described in Sections 5.1
(a) through 5.1(s) or any action which would cause the condition set forth in Section 7.2(a) not to be satisfied; or
(u) except as permitted by Sections 6.6, 8.3 and 8.5 hereof, take any action that would or is would reasonably likely be expected to result in any of the conditions to the Merger set forth in Article VII prevent, impair or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair delay the ability of the Company or Parent to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24transactions contemplated by this Agreement.
Appears in 1 contract
Conduct of Business of the Company. (a) Except as required by this Agreement or with the prior written consent of Parentprovided in Section 4.2(b), during the period from the date of this Agreement to the Effective TimePre-Closing Period, (i) the Company will, and will cause each of the Subsidiaries to, shall conduct its operations only business in the ordinary and usual course of business consistent with past practice and will (ii) the Company shall use its reasonable best efforts, efforts to maintain and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the its business organization of the Company and each of the Subsidiariesorganization, to keep available the services of its and their present officers and employees, employees and to preserve the good will of those maintain satisfactory relations with lessors, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;Company.
(b) except for issuances of capital stock of During the Subsidiaries to the Company or a whollyPre-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of Closing Period,
(i) additional shares the Company shall keep in full force all insurance policies identified in Part 2.17 of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or Disclosure Schedule;
(ii) any other securities the Company shall (to the extent requested by ADAC) cause its officers to report regularly (but in respect of, in lieu of, or in substitution for, Shares outstanding on no event less frequently than weekly) to ADAC concerning the date hereofstatus of the Company's business;
(ciii) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series shares of its capital stock other than between any of the Company stock, and any of the wholly-owned Subsidiaries;
(d) splitshall not repurchase, combine, subdivide, reclassify or redeem, purchase redeem or otherwise acquire, or propose to redeem or purchase or otherwise acquire, reacquire any shares of its capital stock, stock or any of its other securities;
(eiv) except for the Company shall not sell, issue or authorize the issuance of (A) increases in salary, wages and benefits of non-executive officers any capital stock or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practiceother security, (B) increases in salaryany option, wages and benefits granted call, warrant or right to officers and employees of the Company acquire, or the Subsidiaries in conjunction with new hiresrelating to, promotions any capital stock or other changes in job status in the ordinary 19 23 course of business consistent with past practicesecurity, or (C) increases any instrument convertible into or exchangeable for any capital stock or other security, except pursuant to the conversion of the Preferred Stock into shares of Company Common Stock;
(v) neither the Company nor any of the Designated Shareholders shall amend or permit the adoption of any amendment to the Company's articles of incorporation or bylaws, or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(vi) the Company shall not form any subsidiary or acquire any equity interest or other interest in salaryany other entity;
(vii) except pursuant to Section 5.9, wages and benefits the Company shall not make any capital expenditure, except for capital expenditures that, when added to employees all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate;
(viii) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Material Contract or (ii) amend or prematurely terminate, or waive any material right or remedy under, any Material Contract;
(ix) the Company shall not (A) acquire, enter into or commence any lease or license for any right or other asset from any other Person, (B) sell or otherwise dispose of, or enter into or commence any lease or license, for any right or other asset to any other Person, or (C) waive or relinquish any right, except for immaterial assets acquired, leased, licensed or disposed of by the Company pursuant to collective bargaining agreements entered into Contracts that are not Material Contracts;
(x) the Company shall not (A) lend money to any person or entity, or (B) incur or guarantee any indebtedness, except that the Company may borrow up to $466,000 under its line of credit, $110,000 of which has been borrowed to date and the remaining $356,000 of which may be borrowed as necessary to pay the legal and accounting fees described in Section 7.3, pay the ordinary course of business consistent with past practicebonus to Xxxx Xxxxxxxx under Section 4.13, and to consummate the transaction described in Section 5.9 below;
(xi) the Company shall not (A) establish, adopt or amend any Employee Benefit Plan, (iB) except as set forth in Section 4.13, pay any bonus or make any profit-sharing or similar payment to, or, except as set forth in Part 2.14 of the Disclosure Schedule, increase the amount of the wages, salary, commissions, fringe benefits or other compensation or fringe benefits remuneration payable or to become payable to to, any of its directors, officers or employees (whether from the Company or any of the Subsidiaries)employees, or (iiC) pay hire any benefit new employees.
(xii) the Company shall not required by change any existing plan of its methods of accounting or arrangement, or (iii) grant accounting practices in any severance or termination pay respect (except pursuant as necessary to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee reflect the matter disclosed in Part 2.4 of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationDisclosure Schedule);
(fxiii) acquire, sell, lease, mortgage, encumber the Company shall not make any Tax election;
(xiv) the Company shall not commence or dispose of settle any assets Legal Proceeding;
(other than inventoryxv) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or Company shall not enter into any material commitment transaction or transaction take any other material action outside the ordinary course of business consistent or inconsistent with its past practice other than transactions between a wholly-owned Subsidiary and practices; and
(xvi) the Company shall not agree or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate commit to take any of the Material Contracts or waive, release or assign any rights or claims thereunder, except actions described in the ordinary course clauses "(v)" through "(xv)" of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24this Section 4.2.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Conduct of Business of the Company. Except as permitted, required by or specifically contemplated by, or otherwise described in, this Agreement or otherwise with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries its subsidiaries to, conduct its operations only in the ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries its subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiariesits 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Timeincluding, without the prior written consent of Parent:limitation, maintaining satisfactory relationships with
(a) adopt any amendment to its certificate Articles of incorporation Incorporation or by laws By-Laws or comparable organizational documentsdocuments or the Rights Agreement;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, (i) issue, reissue reissue, pledge or sell, or authorize the issuance, reissuance reissuance, pledge or sale of (iA) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares (and the related Rights), in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to: (A) to the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10hereof, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofhereof or (ii) make any other changes in its capital structure;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of its wholly owned subsidiaries, except for the wholly-owned Subsidiariesregular quarterly dividend on the Common Shares not in excess of $0.04 per Common Share with a record and payment date in accordance with recent practice; provided that such dividend may not be declared if Common Shares are accepted for payment in accordance with the Amended Offer and this Agreement prior to June 1, 1996;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (Bi) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries its subsidiaries (who are not officers) in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into normal compensation reviews in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber lease or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other material assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-wholly owned Subsidiary subsidiary of the Company and the Company or another wholly-wholly owned Subsidiary subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries its subsidiaries may incur, assume incur or pre-pay debt in the ordinary course of business in amounts and for purposes consistent with past practice under existing lines of creditpractice, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;,
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice, (i) modify, amend or terminate any material contract, (ii) except as required by law, waive, release, relinquish, settle, compromise or assign any material contract (or any of the Company's rights thereunder), right or claim, or (iii) cancel or forgive any indebtedness owed to the Company or any of its subsidiaries except in ordinary course of business consistent with past practice; provided, however, that the Company may not under any circumstance waive or release any of its rights under any written confidentiality agreement (except that provisions limiting control-related activities may be waived if the Company's Board of Directors determines in good faith, upon the advice of its outside counsel, that its fiduciary duties require it to do so) to which it is a party;
(i) make any material tax election not required by law or, except as required by law, settle or compromise any material tax liability;
(j) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof;
(k) enter into any contract or agreement other than in the ordinary course of business that would be material to the Company and its subsidiaries taken as a whole;
(l) takeexcept as may be required as a result of a change in law or in generally accepted accounting principles, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty change in its methods of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationaccounting; or
(m) enter into an agreement, contract, commitment agree in writing or arrangement otherwise to do take any of the foregoing, foregoing actions prohibited under this Section 6.01 or any action which would cause any representation or warranty in this Agreement to authorize, recommend, propose be or announce an intention to do become untrue or incorrect in any of the foregoing. 20 24material respect.
Appears in 1 contract
Samples: Merger Agreement (Eaton Corp)
Conduct of Business of the Company. Except with Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) or as required contemplated by the other terms of this Agreement or with the prior written consent of Parentrequired by applicable Law, during the period from the date Effective Date until the earlier of the Closing or the termination of this Agreement to the Effective Timein accordance with Article XI, Seller shall cause the Company will, and will cause each of the Subsidiaries to, to conduct its business and operations only in the Ordinary Course of Business and except as set forth in Schedule 7.1, Seller shall cause the Company not to (whether directly or indirectly):
(i) amend its Organizational Documents;
(ii) split, combine or reclassify its Equity Interests;
(iii) redeem, repurchase or otherwise acquire its Equity Interests;
(iv) issue, sell or dispose of any of its Equity Interests (whether by merger, consolidation or otherwise);
(v) acquire (by merger, consolidation or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than acquisitions of assets and properties in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documentsbusiness;
(bvi) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, lease or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any classotherwise transfer, or securities convertible into capital stock of create or incur any class, or any rights, warrants or options to acquire any convertible securities or capital stockLien, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10Permitted Liens, or (B) the conversion of Class A Common Shareson, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its material assets, properties or interests other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries than in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationbusiness;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iiivii) make any loans, advances or capital contributions to, or investments in, any Person;
(viii) create, incur, assume or otherwise be liable with respect to any indebtedness for borrowed money, other person except than (A) the incurrence of trade debt incurred in the ordinary course of business consistent with past practice and except (B) indebtedness for loans, advances, capital contributions borrowed money that will be settled at or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryprior to Closing;
(hix) modifyenter into, amend or modify in any material respect or terminate any of the Material Contracts Contract, or otherwise waive, release or assign any rights material rights, claims or claims thereunder, benefits thereunder except in the ordinary course of business and business;
(x) change any methods of financial accounting, except as required by GAAP or applicable Law;
(xi) acquire any fee or leasehold interest in any tract of real property;
(xii) establish, adopt or incur any Liability with respect to, any Benefit Plan;
(xiii) (x) enter into any independent contractor or consulting agreements that are not terminable at-will without penalty, except in the Ordinary Course of Business, consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, (y) hire any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationemployees; or
(mxiv) enter into an agreementagree, contract, commitment commit or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention offer to do any of the foregoing. 20 24Notwithstanding the foregoing and without requiring the consent of Buyer, each of Seller and the Company may, in its reasonable discretion, engage in and undertake any and all activities necessary to prevent or minimize injury to Persons or damage to the property or assets of the Company (and its agents and representatives) in the case of an emergency and/or to address, prevent or minimize a health, environmental or safety concern involving the properties or assets of the Company or the Business.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Conduct of Business of the Company. Except as required consented to by MiNT or as contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement hereof to the Effective Time, the Company will, and will cause each of the Subsidiaries its subsidiaries to, conduct its operations only in the ordinary and usual course of business consistent with past practice and will use its reasonable best effortsbusiness, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with it. Without without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to amend its certificate of incorporation or by laws bylaws (or comparable other similar organizational documentsor governing instruments), except to authorize a total of 100,000,000 shares of common stock and to file the certificate of designations or an amendment to authorize the Series A Preferred Stock of the Company to be issued pursuant to Section 5.8, and except to amend its bylaws to conform to the bylaws of MiNT;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, deliver or authorize agree or commit to issue, sell or deliver (whether through the issuanceissuance or granting of options, reissuance warrants, commitments, subscriptions, rights to purchase or sale of (iotherwise) additional shares of capital any stock of any class, class or any other securities convertible into capital or exchangeable for any stock of any class, or any equity equivalents (including, any stock options or stock appreciation rights, warrants or options to acquire any convertible securities or capital stock), other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof Series A Preferred Stock as described in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof5.8;
(c) split, combine or reclassify any shares of its capital stock; declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of any class or series of its capital stock (other than between any of dividends or distributions payable to the Company and or its subsidiaries); make any other actual, constructive or deemed distribution in respect of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stockstock or otherwise make any payments to stockholders in their capacity as such; or redeem, repurchase or otherwise acquire any of its other securitiessecurities or the securities of any of its subsidiaries;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jd) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries its subsidiaries (other than the Merger);
(ke) payincur or assume any indebtedness for borrowed money; assume, discharge guarantee, endorse or satisfyotherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; pledge or otherwise encumber shares of capital stock of the Company or its subsidiaries; or create or assume any lien on any assets of the Company or any of its subsidiaries;
(f) except as may be required as a result of a change in law or in GAAP, make any material change in any of the accounting principles or practices used by it;
(g) 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; enter into any material contract or agreement or amend in any material respect any of the material contracts or the agreements to which it is presently a party; or enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited hereunder;
(h) make or revoke any tax election, or fail settle or compromise any material tax liability, or change (or make a request to payany taxing authority to change) any aspect of its method of accounting for tax purposes;
(i) settle or compromise any pending or threatened suit, discharge or satisfyaction, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise);
(j) take any action that would prevent or impede the Merger from qualifying as a "reorganization" under Section 368 of the Code;
(k) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its subsidiaries or any successor thereto or that could, other than after the Effective Time, limit or restrict the Surviving Corporation and its affiliates or any successor thereto, from engaging or competing in the ordinary course any line of business and consistent with past practiceor in any geographic area;
(l) fail to comply in any material respect with any law applicable to the Company, its subsidiaries, or their respective assets;
(m) adopt, enter into, amend, alter or terminate (partially or completely) any benefit plan or employee arrangement except as contemplated by this Agreement or to the extent required by applicable law, or enter into any contract with an officer, director, employee, agent or other similar representative of the Company or any of its subsidiaries that is not terminable, without penalty or other liability, upon not more than 30 calendar days' notice; or
(n) take, propose to take, or agree to commit in writing or otherwise to take, any action that would or is reasonably likely to result in any of the actions described in this Section 5.1, or any action which would cause the conditions to the Merger set forth in Article VII or any of the conditions Section 6.1 not to the Offer not being be satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to until the earlier of termination of this Agreement (in accordance with its terms) or the Effective Time, unless the Company will, and will cause each prior written consent of the Subsidiaries toPurchaser shall have been obtained or except as required by applicable Law or expressly contemplated by this Agreement, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the SubsidiariesCompany Subsidiaries shall: (a) conduct their respective businesses only in the usual, regular, and ordinary course consistent with past practice, (b) use their reasonable best efforts to maintain and preserve substantially intact their respective business organizations, assets, and properties and maintain their respective rights and franchises, (c) to keep available the services of its and their present respective current officers and employees, and (d) to preserve the good will of those their present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with itthem. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise required or permitted expressly contemplated by this Agreement or as set forth in Section 6.01 of required by applicable Law, neither the Company Disclosure Statement, the nor any Company will not, and will not permit any of the Subsidiaries to, prior to the Effective TimeSubsidiary shall, without the prior written consent of ParentPurchaser:
(a) adopt amend or propose to amend any amendment to its certificate of incorporation the Charter Documents of the Company or by laws or comparable organizational documentsany Company Subsidiary;
(b) except for issuances of capital stock of the Subsidiaries to (i) adjust, split, combine, or reclassify any the Company or a wholly-owned Subsidiary, issue, reissue or sell, Securities or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution forfor Company Securities, Shares outstanding on (ii) repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem, or otherwise acquire any Company Securities, (iii) exchange, directly or indirectly, any shares, or any securities convertible into any of the date hereof;
Company Securities, or (civ) declare, set aside or pay any dividend or other distribution (whether payable in cash, capital stock, rights thereto property, or other assets, securities or property or any combination thereofotherwise) in respect of any class or series of respect to its capital stock, or enter into any Contract with respect to the voting of, any Company Securities;
(c) issue, sell, pledge, dispose of, encumber, authorize the issuance of, enter into any Contract or other instrument, to issue, sell, pledge, dispose of, encumber, or otherwise permit to become outstanding any additional shares of Company Common Stock or any other Company Securities (or permit the exercise of any Company Option, or other right requiring the issuance of any Company Securities), or any stock other than between appreciation rights, or any of the Company and Option to acquire any of the wholly-owned SubsidiariesCompany Securities;
(d) splitexcept as required by applicable Law or Contract in effect as of the date of this Agreement, combine(i) increase the compensation or benefits payable or that could become payable by the to directors, subdivideofficers, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries any Company Subsidiary, other than increases in compensation made to non-officer employees in the ordinary course of business consistent with past practice, (Bii) increases promote any officers or employees, except in salaryconnection with the annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or employee, wages and benefits granted (iii) establish, adopt, enter into, any Benefit Plan, agreement, program, policy, trust, fund, or other arrangement or make any material change in or to officers and employees any existing employee benefit plans of the Company or the Subsidiaries in conjunction with new hiresany Company Subsidiary other than any such change that is required by Law or that, promotions or other changes in job status in the ordinary 19 23 course opinion of business consistent with past practicecounsel, is necessary or advisable to maintain the Tax qualified status of any such plan; (iv) make any contribution to any Benefit Plan, other than contributions required by Law, the terms of such employee benefit plan as in effect on the date hereof, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into that are made in the ordinary course of business consistent with past practice, (iv) increase the compensation enter into or fringe benefits payable or to become payable to its directors, amend any severance agreements with officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the SubsidiariesCompany Subsidiary, or (vvi) establish, adopt, enter into, into or amend any collective bargainingemployment agreement, bonuscontract, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit planinstrument between Company or any Company Subsidiary, agreementon one hand, trust, fund, policy or arrangement for the benefit or welfare of and any directors, officers or current or former employees, except in each case to the extent Person (unless such amendment is required by applicable law Law), on the other hand, that the Company or regulationany Company Subsidiary does not have the unconditional right to terminate without liability (other than liability for services already rendered), at any time on or after the Effective Time.
(e) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person in excess of $10,000 in the aggregate;
(fi) acquiretransfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, mortgage, encumber or dispose of otherwise subject to any assets Lien (other than inventory) a Permitted Lien), any of its assets or securities with a valueproperties; provided, individually that the foregoing shall not prohibit the Company from transferring, selling, leasing, or in disposing of obsolete equipment or assets being replaced, or granting non-exclusive licenses under the aggregateCompany Intellectual Property, in excess of $20.0 million, in the each case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (ii) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(g) (i) repurchase, prepay, or incur any additional debt obligation or other obligation for borrowed money in excess of an aggregate of $10,000, (ii) assume, guarantee, endorse, or otherwise as an accommodation become responsible for the obligations of an individual, corporation, or other entity, (iii) make any loans, advances loan or capital contributions toadvance to any director or officer of the Company or any Company Subsidiary or to any other Person in excess of an aggregate of $10,000, or investments incancel, release, or assign any other person indebtedness to any such Person or any claims held by any such Person, except in the ordinary course of business consistent with past practice and except for loansor pursuant to contracts, advancesagreements, capital contributions or investments between other instruments in force at the date of this Agreement, or (iv) issue or sell any wholly-owned Subsidiary and debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another wholly-owned Subsidiary;
(h) modifyPerson, amend enter into any “keep well” or terminate other Contract to maintain any financial statement condition of any other Person or enter into any arrangement having the economic effect of any of the Material Contracts or waiveforegoing, release or assign any rights or claims thereunder, except other than in connection with the financing of ordinary course of business and trade payables consistent with past practice;
(h) enter into, amend, or modify in any material respect, or consent to the termination of (other than at its stated expiration date or other than renewals without material adverse change of terms, or waive, release, compromise, or assign any material rights or claims), any Company Material Contract or any other Contract that, if in effect as of the date hereof would constitute a Company Material Contract;
(i) institute, settle, or compromise any Legal Proceeding involving the payment of monetary damages by the Company or any Company Subsidiary of any amount exceeding $10,000 in the aggregate, other than (i) any Legal Proceeding brought against Purchaser arising out of a breach or alleged breach of this Agreement by Purchaser, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Company Balance Sheet; provided, that neither the Company nor any Company Subsidiary shall settle or agree to settle any Legal Proceeding which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on their respective businesses;
(j) make any significant change in any method of the Tax methods or financial accounting methods used by it unless principles or practices or systems of internal accounting controls in effect on June 30, 2022, in each case except for any such change required by GAAP, make a change in GAAP or applicable Law;
(k) settle or compromise any material Tax election claim, audit, or change assessment for an amount materially in excess of the amount reserved or revoke any material Tax election already madeaccrued on the Company Balance Sheet, adopt, request (ii) make or consent to any new material Tax accounting method, change any material Tax election, change any annual Tax accounting period, or adopt or change any method unless required by applicable lawof Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, settle surrender in writing any right to claim a material Tax claim refund, offset or assessment other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or any waiver of relating to the statute of limitations for any such claim or assessmentCompany;
(jl) adopt a plan enter into any material agreement, agreement in principle, letter of complete intent, memorandum of understanding, or partial liquidationsimilar Contract with respect to any joint venture, dissolutionstrategic partnership, mergeror alliance;
(m) take any action to exempt any Person from, consolidation, restructuring, recapitalization or other reorganization make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company with respect to an Acquisition Proposal or otherwise, including the Anti-Takeover Laws, except for the Purchaser or any of its Affiliates or the Subsidiaries (other than the Merger)Transactions;
(kn) payabandon, discharge allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or satisfydispose of any Company Intellectual Property, or fail grant any right or license to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), Company Intellectual Property other than pursuant to non-exclusive licenses entered into in the ordinary course of business and consistent with past practice;
(lo) taketerminate or modify in any material respect, or agree fail to commit to takeexercise renewal rights with respect to, any action that would or is reasonably likely to result material insurance policy;
(p) engage in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfiedtransaction with, or would make enter into any representation agreement, arrangement or warranty understanding with, any Affiliate of the Company contained herein inaccurate in any material respect at, or as other Person covered by Item 404 of any time prior to, the Effective Time, or Regulation S-K that would materially impair the ability be required to be disclosed pursuant to Item 404 of the Company to consummate the Merger in accordance with the terms thereof Regulation S-K;
(q) adopt or materially delay such consummationimplement any stockholder rights plan or similar arrangement; or
(mr) enter into an agreementagree to, contractor make any commitment to, commitment or arrangement to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any actions prohibited by Section 7.01 of the foregoing. 20 24this Agreement.
Appears in 1 contract
Conduct of Business of the Company. Except The Company covenants and agrees that, except (i) as required expressly contemplated by this Agreement or with the prior written (ii) as Parent may consent of Parentin writing, during the period from the date of this Agreement to the Effective Time, :
(a) the business of the Company will, and will cause each of the Company Subsidiaries to, conduct its operations shall be conducted only in the ordinary course of business consistent with past practice practice, and will each of the Company and the Company Subsidiaries shall use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its present business organization of the Company intact and each of the Subsidiariesmaintain good relations with customers, to keep available the services of its and their present officers and suppliers, employees, contractors, distributors and to preserve the good will of those others having business relationships dealings with it. Without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to neither the Company nor any Company Subsidiary shall, directly or a wholly-owned Subsidiaryindirectly, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any classexcept, or securities convertible into capital stock of any classwith respect to the Company, or any rights, warrants or options to acquire any convertible securities or capital stock, other than (A) for the issuance of Class D Common Shares pursuant to: (A) the Stock or Class A Common Stock, as applicable, upon exercise of the Options outstanding on the date hereof pursuant to the terms thereof as in effect of such Options, (B) for the issuance of shares of Class C Common Stock upon exercise of any Warrant outstanding on the date hereof or as modified as contemplated by Section 2.10pursuant to the terms of such Warrant, or (BC) for the conversion issuance of shares of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares Stock upon conversion of Class B Common Stock outstanding on the date hereofhereof pursuant to the Company's certificate of incorporation, and (D) for the issuance of shares of Class A Common Stock upon conversion of Class B Series 2 Preferred Stock outstanding on the date hereof pursuant to the Company's certificate of incorporation, issue, sell, transfer, dispose of, encumber or pledge any shares of capital stock of the Company or any capital stock of any Company Subsidiary, (ii) amend its certificate of incorporation or by-laws or similar organizational documents or (iii) split, combine, sub-divide or reclassify any outstanding shares of its capital stock;
(c) neither the Company nor any Company Subsidiary shall: (i) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or property with respect to its capital stock, rights thereto except (A) in the case of the Company, for quarterly dividends to the extent provided for in, and in an amount not to exceed that required by, the Company's certificate of incorporation with respect to the Exchangeable Preferred Stock; PROVIDED, HOWEVER, that the record date for any such dividend shall in no event be earlier than 10 days prior to the date on which such dividend is payable and (B) in the case of any direct or indirect wholly-owned Company Subsidiary, for the payment of cash dividends or other assetscash distributions to the Company or another wholly-owned Company Subsidiary in the ordinary course of business consistent with the Company's current cash management procedures; (ii) issue, sell, transfer, dispose of, encumber or pledge any securities convertible into or property exchangeable for, or any combination thereof) in respect options, warrants or rights of any class or series kind to acquire, any shares of its capital stock other than between any of the Company and or any Company Subsidiary; or (iii) except, in the case of the wholly-owned Subsidiaries;
(d) splitCompany to the extent required by Section 7.8 with respect to the Exchangeable Preferred Stock, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, acquire any shares of its capital stock;
(d) neither the Company nor any Company Subsidiary, shall (i) acquire, sell, lease or dispose of any assets except (A) in the ordinary course of business consistent with past practice or (B) with respect to the sale of the assets set forth on Section 6.1(d) of the Company Disclosure Schedule in accordance with the terms of the purchase and sale agreements with respect to such assets as in effect on the date hereof or otherwise pursuant to purchase and sale agreements on terms and conditions (other than price) no less favorable to the Company than any purchase and sale agreement currently in effect on the date hereof with respect to any such assets; (ii) acquire (by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any of its other securitiesequity interest therein; or (iii) enter into any material commitment or transaction;
(e) except for as required by law or by a Collective Bargaining Agreement, neither the Company nor any Company Subsidiary shall (Ai) change the compensation or benefits payable or to become payable to any of its officers, directors or employees (other than increases in salarywages in the ordinary course of business consistent with past practice to employees who are not officers, wages and benefits directors or affiliates); (ii) enter into or amend any employment, severance, consulting, termination or other agreement or employee benefit plan; or (iii) make any loans to any of non-executive officers its officers, directors, employees or affiliates or change its existing borrowing or lending arrangements for or on behalf of any of such persons pursuant to an employee benefit plan or otherwise;
(f) except as required by law or by a Collective Bargaining Agreement, neither the Company nor any Company Subsidiary shall (i) pay or arrange for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or affiliate or pay or make any arrangement for payment to any officers, directors, employees or affiliates of the Company or the Subsidiaries of any amount relating to unused vacation days, except payments and accruals made in the ordinary course of business consistent with past practice; (ii) except as may be required pursuant to the terms of a plan, agreement or arrangement as in effect on the date hereof, adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any director, officer or employee, whether past or present; or (Biii) increases amend in salaryany material respect any such existing plan, wages and benefits granted agreement or arrangement in a manner inconsistent with the foregoing;
(g) neither the Company nor any Company Subsidiary will (i) in any material respect, modify, amend or terminate any of the Listed Company Agreements; (ii) waive, release or assign any material rights or claims under any of the Listed Company Agreements; or (iii) enter into any contracts, agreements, arrangements or understandings that would be required to officers and employees be set forth in Section 4.13 of the Company Disclosure Schedule except for those contracts, agreements, arrangements or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or understandings which are (Cx) increases in salary, wages and benefits not material to employees of the Company pursuant to collective bargaining agreements and (y) entered into in the ordinary course of business consistent with past practice, ;
(h) neither the Company nor any Company Subsidiary will permit any material insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated without prior notice to Parent;
(i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from neither the Company or nor any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) will (i) incur, incur or assume or pre-pay any long-term debt indebtedness or incur or assume any short-term debt, indebtedness (except that the for indebtedness under Sweetheart Cup Company and the Subsidiaries may incur, assume or pre-pay debt Inc.'s existing revolving credit agreement for working capital in the ordinary course of business consistent with past practice under existing lines of credit, practice); (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person Person except endorsements of negotiable instruments in the ordinary course of business consistent with past practice, or ; (iii) make any loans, advances or capital contributions to, or investments in, any other person except Person (excluding advances to employees for expenses in the ordinary course of business consistent with past practice and except for loanspractice); or (iv) mortgage or pledge any of its assets, advancestangible or intangible, capital contributions or investments between create any wholly-owned Subsidiary and the Company or another wholly-owned SubsidiaryEncumbrance of any kind with respect to any such assets;
(hj) modify, amend neither the Company nor any Company Subsidiary shall enter into or terminate modify any of the Material Contracts Collective Bargaining Agreement or waive, release similar agreement or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practicesuccessor Collective Bargaining Agreement to any Collective Bargaining Agreement;
(k) the Company and each Company Subsidiary shall timely and properly file, or timely and properly file requests for extensions to file, all federal, state, local and foreign Tax Returns which are required to be filed, and pay or make provision for the payment of all Taxes owed by them;
(l) neither the Company nor any Company Subsidiary will (i) change any of the accounting methods used by it unless except for such changes required by GAAP, GAAP or (ii) make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to adopt any new material Tax accounting method, change any material Tax accounting method unless required by applicable lawmethod, amend any Tax Return, enter into any material closing agreement, agreement or settle any material Tax claim or material assessment relating to Taxes or consent to any material Tax claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment;
(jm) except as provided in Section 6.1(o), neither the Company nor any Company Subsidiary will pay, discharge or satisfy any claims, liabilities or obligations (whether absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations reflected or reserved against in the Financial Statements as of September 28, 2003 or incurred in the ordinary course of business consistent with past practice since September 28, 2003;
(n) neither the Company nor any Company Subsidiary will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries Company Subsidiary (other than than, with respect to the Company, the Merger);
(ko) payneither the Company nor any Company Subsidiary will (i) settle any action, discharge suit, claim, litigation or satisfyother proceeding unless such settlement involves solely the payment of money, includes a full release of the Company and each Company Subsidiary from all liability in respect to such matter, and would not otherwise adversely affect the business, operations or assets of the Company or any Company Subsidiary, or fail to pay(ii) enter into any consent decree, discharge injunction or satisfyother similar restraint or form of equitable relief in settlement of any action, any suit, claim, liability litigation or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practiceproceeding;
(lp) neither the Company nor any Company Subsidiary will take, or agree to commit in writing or otherwise to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer VIII not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, at or as of any time prior to, to the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof hereof or materially delay such consummation; or;
(mq) neither the Company nor any Company Subsidiary shall make any capital expenditure which is not in all material respects in accordance with the annual budget for the fiscal year 2004, a true and correct copy of which has been delivered to Parent, provided, however, that the foregoing shall not prohibit the Company or any Company Subsidiary from responding to an emergency situation in a manner and to the extent necessary to stabilize such emergency situation to allow sufficient time to consult with Parent as to any required additional expenditures;
(r) neither the Company nor any Company Subsidiary (i) shall allow any Intellectual Property owned or possessed by the Company or any Company Subsidiary to lapse, become abandoned, dedicated to the public or unenforceable except in the ordinary course of business consistent with past practice, or (ii) cease the use of any Trademarks included in the Business Intellectual Property or fail to maintain the level of quality associated with such Trademarks; and
(s) neither the Company nor any Company Subsidiary will enter into an any agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Samples: Merger Agreement (Solo Texas, LLC)
Conduct of Business of the Company. Except as required contemplated by this --- ---------------------------------- Agreement or with as disclosed in writing to the prior written consent of ParentInvestors in Schedule 4.1, during ------------ the period from the date of this Agreement to the Effective Timedate five business days after the Stockholder Meeting, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth disclosed in Section 6.01 of writing to the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, Investors prior to the Effective Timedate five business days after the Stockholder Meeting, neither the Company nor any of its subsidiaries shall, without the prior written consent of Parent:
the Investors, (a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell or sellpledge, or authorize or propose the issuance, reissuance sale or sale pledge of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities or capital stockof the Company for shares, other than the issuance of Common Shares pursuant to: (A) the exercise shares of Options outstanding on the date hereof Common Stock issuable pursuant to the terms thereof as of outstanding Stock Options and commitments disclosed in effect on the date hereof or as modified as contemplated by Section 2.102.2, or (B) issuance of shares of capital stock to the conversion Company by a wholly owned subsidiary of Class A Common Sharesthe Company, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares for shares of Common Stock outstanding on the date hereof;
thereof; (cb) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any of its outstanding capital stock or other equity or debt securities; (c) declare or pay any dividend or distribution on any shares of its capital stockstock of the Company, except that a direct or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees indirect wholly owned subsidiary of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable may pay a dividend to its directors, officers or employees parent; (whether from the Company or d) make any acquisition of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee a material amount of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities capital expenditures in accordance with a value, individually or in the aggregate, Company's existing budget not in excess of $20.0 million100,000 for any single expenditure) or securities, in the case any disposition (including by way of rolling stockmortgage, license, encumber or $3.0 million in the case any Lien) of other a material amount of assets or securities, or enter into a material contract (except for entering into new contracts involving amounts under $5,000,000 in the ordinary course of business) or release or relinquish any commitment material contract rights not in the ordinary course of business, or make any amendments, or modifications thereto; (e) (i) incur any indebtedness for borrowed money (other than takedowns under the Company's existing credit facility) or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to do acquire any debt securities of the Company or any of its -18- subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or enter into (ii) make any material commitment loans, advances of capital contributions to, or transaction outside the ordinary course of business consistent with past practice investments in, any other person, other than transactions between a wholly-owned Subsidiary and to the Company or another wholly-any direct or indirect wholly owned Subsidiary subsidiary of the Company;
; (gf) pay, discharge, settle or satisfy any claims, liabilities or obligations (i) incurabsolute, assume accrued, asserted or pre-pay any long-term debt unasserted, contingent or incur otherwise), other than the payment, discharge, settlement or assume any short-term debtsatisfaction, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice or in accordance with their terms, of workers compensation claims under existing lines $50,000 or claims by or against customers involving amounts under $200,000; (g) propose or adopt any amendments to the Certificate of creditIncorporation, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practiceas amended, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course Bylaws of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company (or another wholly-owned Subsidiary;
any such similar organizational documents of its subsidiaries), except as contemplated hereby; (h) modifyenter into any new employment agreements with any officers, amend directors or terminate key employees or grant any material increases in the compensation or benefits to officers, directors and key employees; (i) take any of the Material Contracts or waive, release or assign any rights or claims thereunder, except actions set forth in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
Section 2.5 not otherwise specified herein; (j) adopt a plan settle the terms of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any litigation affecting the Company or any of the Subsidiaries its subsidiaries; (k) make any tax election or settle or compromise any income tax liability; (l) make or agree to make any new capital expenditures (other than capital expenditures in accordance with the MergerCompany's existing budget not in excess of $100,000 for any single expenditure);
; or (km) pay, discharge agree in writing or satisfy, or fail otherwise to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in take any of the conditions to the Merger set forth in Article VII foregoing actions or any of the conditions to the Offer not being satisfied, or action which would make any representation or warranty of the Company contained herein inaccurate in any material respect at, this Agreement untrue or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24incorrect.
Appears in 1 contract
Samples: Securities Purchase Agreement (Canisco Resources Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with (including matters referred to on the prior written consent of ParentSchedules hereto), during the period from the date of this Agreement hereof to the Effective Time, unless otherwise agreed to in writing by Parent, the Company will, and will cause each of the Subsidiaries to, conduct its operations only business in the ordinary course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the business organization of the Company and each of the SubsidiariesCompany, to keep available as a group the services of its and their present current officers and key employees, and to preserve the good will of those having business relationships with itits material customers. Without limiting the generality of the foregoing, and except as otherwise required or permitted contemplated by this Agreement or as set forth otherwise agreed to in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries towriting by Parent, prior to the Effective Time, without the prior written consent of Parent:
Company will not (a) adopt issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (i) any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances shares of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryany securities or rights convertible into, issue, reissue or sellexchangeable for, or authorize evidencing the issuanceright to subscribe for, reissuance or sale of (i) additional any shares of capital stock of any classthe Company, or securities convertible into any options, warrants, calls, rights, commitments or any other agreements of any character to purchase or acquire any shares of capital stock of the Company or any classsecurities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any rights, warrants or options to acquire any convertible securities or such shares of capital stock, other than or grant or accelerate any right to convert or exchange any securities of the issuance Company for shares of Company Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common SharesStock, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares shares of Company Common Stock outstanding on the date hereof;
; (b) redeem or otherwise acquire, or propose to redeem or otherwise acquire, any of the outstanding equity securities of the Company (including shares of Company Common Stock); (c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series shares of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
Company; (d) splitmake any acquisition, combineby means of a merger or otherwise, subdivide, reclassify of a material amount of assets or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
; (e) except for (A) increases agree to any sale, lease, encumbrance or other disposition of a material amount of assets or securities or any material change in salaryits capitalization, wages and benefits of non-executive officers other than sales or employees of the Company or the Subsidiaries other dispositions in the ordinary course of business consistent with past practice, ; (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (ivf) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), contract other than in the ordinary course of business and or agree to any release or relinquishment of any material contract rights; (g) incur any long-term debt or short-term debt for borrowed money except for debt incurred in the ordinary course consistent with past practice;
; (lh) takepropose or adopt any amendments to the Articles of Incorporation or Bylaws of the Company; (i) enter into any new employment, consulting, severance or indemnification agreement with any officer, director or key management employee; or (j) agree in writing or otherwise to commit to take, any action that would or is reasonably likely to result in take (i) any of the conditions to the Merger set forth in Article VII foregoing actions or (ii) any of the conditions to the Offer not being satisfied, or action which would make any representation or warranty of the Company contained herein inaccurate untrue or incorrect in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of respect. Without limiting the foregoing, or the Company shall not be permitted to authorize, recommend, propose or announce an intention to do any pay bonuses and grant salary increases without the prior written consent of the foregoing. 20 24Purchaser.
Appears in 1 contract
Samples: Merger Agreement (Di Industries Inc)
Conduct of Business of the Company. Except as required by this Agreement or with the prior written consent of Parent, during During the period from the date of this Agreement to until the Effective TimeClosing, except (a) as explicitly required by this Agreement, (b) for the matters set forth in Section 6.1 of the Disclosure Schedule, or (c) as Buyer otherwise consents in writing in advance ***, the Company willshall, and will it shall cause each the other Transferred Companies to, (x) conduct the Business of the Subsidiaries to, conduct its operations only Transferred Companies in the ordinary course Ordinary Course of business consistent with past practice and will Business, (y) use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, *** efforts to preserve intact the business organization organizations of the Company Transferred Companies, to preserve the Transferred Companies' *** assets and each of the Subsidiariesproperties in good repair and condition, to keep available the services of its and their present the Transferred Companies' *** officers and employees, *** employees and to preserve maintain the good will of those having business Transferred Companies' *** relationships with it. Without their customers, suppliers, licensors, licensees, consultants and other Persons *** and (z) without limiting the generality of the foregoing, and except as otherwise required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit do any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parentfollowing:
(ai) adopt repurchase, redeem, repay or otherwise acquire any amendment to its certificate of incorporation or by laws or comparable organizational documentsoutstanding Shares;
(bii) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiarytransfer, issue, reissue sell or selldispose of any shares of Capital Stock of any of the Transferred Companies or grant options, warrants, calls or other rights to purchase or otherwise acquire any shares of Capital Stock of any of the Transferred Companies or capital appreciation rights, phantom stock rights, securities with participation rights or features, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock similar obligations and commitments of any classof the Transferred Companies;
(iii) effect any subdivision, recapitalization, reclassification, combination, stock split or like change in the capitalization of any of the Transferred Companies, or securities convertible into capital stock of any class, issue or any rights, warrants authorize or options to acquire any convertible securities or capital stock, other than propose the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of or in substitution for shares of any Transferred Company's Capital Stock;
(iv) amend the Organizational Documents of any of the Transferred Companies;
(v) purchase, sell, lease, sublease, license, leaseback, mortgage, pledge, exchange or otherwise encumber, dispose of or acquire any property or assets (other than transactions occurring in the Ordinary Course of Business), or enter into, modify, supplement or amend any lease or sublease of real property (other than in the Ordinary Course of Business) or make any capital expenditure ***;
(vi) incur any Liabilities or Indebtedness from third party lending sources (other than current trade accounts payable incurred in respect of property or services purchased in the Ordinary Course of Business) or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances (other than, in each case*** and other than ***) ***;
(vii) settle or compromise any Liability for Taxes, amend any *** Tax Return, file any *** Tax Return in a manner inconsistent with past practice or adopt or change any method of accounting for Tax purposes, or enter into any closing agreement with respect to any *** Tax;
(viii) enter into, modify or amend ***, cancel, waive, release, terminate, renew, extend or assign any *** rights or claims with respect to any Material Contract;
(A) grant, increase, or accelerate the vesting or payment of, or in substitution forannounce or promise to grant, Shares outstanding on increase or accelerate the date hereof;
(c) declarevesting or payment of, set aside or pay take any dividend action to fund or otherwise secure the payment of, any wages, salaries, bonuses, incentives, severance or change of control pay, other compensation, pension or other distribution (whether in cashbenefits payable to any Participant, capital stock, rights thereto including any increase or other assets, securities or property or change pursuant to any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practiceBenefit Plan, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (vB) establish, adopt, enter into, increase, amend or terminate (or promise to take any such action(s)) any Benefit Plan or any compensation or benefits potentially available thereunder***;
(x) enter into or amend any collective bargainingemployment contract with, bonusor terminate (***) the employment of, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare any of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationits officers;
(fxi) acquirepay, loan or advance (***) any amount to, or sell, lease, mortgage, encumber transfer or dispose of lease any properties or assets (other than inventoryreal, personal or mixed, tangible or intangible) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securitiesto, or enter into any commitment to do agreement with, any of the foregoing Transferred Companies' officers or directors or any Affiliate of any of the Transferred Companies' officers or directors;
(xii) form or commence the operations of any new business or any corporation, partnership, joint venture, business association or other business organization or division thereof or enter into any material commitment or transaction outside the ordinary course new line of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company***;
(gxiii) settle or compromise any Action or threatened Action, other than any settlement or compromise that involves *** less than $*** individually or $*** in the aggregate;
(xiv) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of the Capital Stock of any Transferred Company, except for dividends and distributions by a direct or indirect wholly owned Subsidiary to its parent;
(xv) directly or indirectly acquire (i) incurby merging or consolidating with, assume or pre-pay by purchasing assets of, or by any long-term debt other manner, any division, business or incur Capital Stock of any Person (including in a transaction involving a tender or assume any short-term debtexchange offer, except that the Company and the Subsidiaries may incurbusiness combination, assume recapitalization, liquidation, dissolution, joint venture or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, similar transaction) or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except than catalyst and inventory in the ordinary course Ordinary Course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments inBusiness, any other person except assets for consideration in excess of $*** individually or $*** in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiaryaggregate;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jxvi) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation, restructuring, recapitalization consolidation or other reorganization of the Company or any of the Subsidiaries (other than the Merger)Transferred Company;
(kxvii) payimplement or adopt any change in the Transferred Companies' accounting methods, discharge principles or satisfypolicies other than as may be required by applicable Law or GAAP;
(xviii) fail to take any action necessary or advisable to protect or maintain the *** Intellectual Property owned, used or held for use by any Transferred Company that is used to conduct the Business of any Transferred Company as currently conducted or planned by the Transferred Company to be conducted, including the prosecution of all pending applications for patents and Trademarks, the filing of any documents or other information or the payment of any maintenance or other fees related thereto;
(xix) except in the Ordinary Course of Business, grant or acquire, agree to grant to or acquire from any Person, or dispose of or permit to lapse any rights to any *** Intellectual Property, or disclose or agree to disclose to any Person, other than Representatives of Buyer or the Transferred Companies, any trade secrets, or compromise, settle or agree to settle any one or more Actions or institute any Action concerning any *** Intellectual Property;
(xx) modify, amend, or rewrite, or fail to pay, discharge renew or satisfyextend, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice*** Insurance Policy;
(lxxi) takepermit any *** Insurance Policy to lapse, be canceled or expire unless (i) Buyer does not consent to the renewal or extension of such policy, including any modifications to the policy that may be required in connection with such renewal or extension, or (ii) a new policy with substantially the same coverage is in effect as of the date of lapse, cancellation or expiration;
(xxii) take any action that would reasonably be expected to (i) impose any *** delay in the obtaining of, or *** increase the risk of not obtaining, any consent, approval, order, authorization or permit of, or declaration, registration, filing with, or notification to, any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or termination of any applicable waiting period; (ii) significantly increase the risk of any Governmental Entity entering a Governmental Order prohibiting or impeding the consummation of the transactions contemplated by this Agreement; or (iii) *** delay or impair the consummation of the transactions contemplated by this Agreement; or
(xxiii) authorize, or commit or agree to commit to take, any action that would or is reasonably likely to result of the foregoing actions. Without in any way limiting any party's rights or obligations under this Agreement, the parties understand and agree that (i) nothing contained in this Agreement shall give the Buyer, directly or indirectly, the right to Control the operations of the conditions Company, or its businesses or operations prior to the Merger set forth in Article VII or any of the conditions Closing and (ii) prior to the Offer not being satisfiedClosing, or would make any representation or warranty of the Company contained herein inaccurate in any material respect atshall exercise, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance consistent with the terms thereof or materially delay such consummation; or
(m) enter into an agreementand conditions of this Agreement, contract, commitment or arrangement to do any of complete control and supervision over the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24businesses and their operations.
Appears in 1 contract
Samples: Stock Purchase and Contribution Agreement (Acorn Energy, Inc.)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from the date of this Agreement to the Effective TimeClosing Date, the Stockholders shall cause the Company will, and will cause each of the Subsidiaries to, to conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best effortspractice, and will cause each of the Subsidiaries to use its their commercially reasonable best efforts, efforts to maintain and preserve intact the their business organization of the Company and each of the Subsidiaries, their material rights and franchises and to keep available retain the services of its and their present officers and employees, key employees and to preserve the good will of those having business maintain relationships with itcustomers, suppliers and other third parties to the end that their goodwill and ongoing business shall not be impaired in any material respect at or prior to the Closing Date. Without limiting the generality of the foregoing, and during the period from the date of this Agreement to the Closing Date, the Stockholders covenant that, except as otherwise required or permitted contemplated by this Agreement or as set forth in Section 6.01 of and the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Timetransactions contemplated hereby, without the prior written consent of ParentBuyer the Company will not, and the Stockholders agree not to, and to cause the Company not to:
(a) adopt any amendment amend or propose to amend its certificate of incorporation or by by-laws or comparable organizational documentssimilar organization instruments;
(b) except authorize for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiaryissuance, issue, reissue or sell, agree to issue or authorize the issuance, reissuance sell or sale of redeem or otherwise acquire (i1) additional any shares of its capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10equity interests, or (B2) the conversion of Class A Common Sharesany securities convertible into, or (ii) any other securities in options with respect of, in lieu ofto, or in substitution warrants to purchase or rights to subscribe for, Shares outstanding on the date hereofany shares of its capital stock or evidences of indebtedness or other debt or equity securities including, without limitation, any stock appreciation rights;
(c) except as disclosed in Schedule 4.4(c), split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiariessecurities;
(d) split(1) create, combine, subdivide, reclassify incur or redeem, purchase assume any indebtedness for money borrowed (including obligations in respect of capital leases) or otherwise acquire, or propose to redeem or purchase or otherwise acquire, issue any shares of its capital stock, or any of its other debt securities;
; (e2) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practicebusiness, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any person other than the Company, if such assumption, guarantee, endorsement or other liability is in any such case material to the Company; (3) make any material loans, advances or capital contributions to or investments in, any person other than the (except for customary loans or advances to employees); or (4) pledge or otherwise encumber its equity interests;
(e) except in the ordinary course of business or as required by any Law, (1) increase in any manner the base compensation of, or enter into or amend any employment, bonus, incentive, severance, consulting, or other compensation agreement with, any existing director, officer or key employee; or (2) commit itself to any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or amend or commit itself to amend any of such plans, funds or similar arrangements in existence on the date hereof so as to increase benefits thereunder;
(f) except in the ordinary course of business or as required by any Law or contractual obligations existing on the date hereof or as provided for in or contemplated by this Agreement the Company shall not (1) sell, transfer or otherwise dispose of any assets outside of the ordinary course of business, (2) create any new Lien, other than a Company Permitted Lien, on its properties or assets, (3) enter into any joint venture or partnership, or (4) purchase any assets or securities of any person;
(g) except as contemplated by this Agreement or as may be required as a result of a change in Law, change any of the material accounting principles or practices used by it;
(h) revalue in any material respect any of its material assets, including, without limitation, materially writing down the value of inventory or writing-off material notes or material accounts receivable balances other than in the ordinary course of business;
(1) acquire or agree to acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any equity interest therein; (2) enter into any contract or agreement other than in the ordinary course of business consistent with past practice; (3) authorize any new capital expenditure or expenditures which, individually, is in excess of $25,000; or (iii4) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into or amend any material closing contract, agreement, settle commitment or arrangement providing for the taking of any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessmentaction that would be prohibited hereunder;
(j) adopt a plan of complete make any tax election or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization settle or other reorganization of the Company or compromise any of the Subsidiaries income tax liability (other than the Mergeralthough Buyer's consent shall not be unreasonably withheld);
(k) pay, discharge or satisfysatisfy any material claims, liabilities or fail to payobligations (absolute, discharge accrued, asserted or satisfyunasserted, any claim, liability or obligation (contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and of liabilities reflected or reserved against in the Company Audited Financial Statements (or the notes thereto) or in the ordinary course of business consistent with past practice;
(l) takesettle or compromise any pending or threatened Action relating to the transactions contemplated hereby;
(m) pledge or otherwise encumber, or agree create or suffer to commit to takeexist any Lien upon, the Shares or any action that would other equity interest in the Company;
(n) mortgage or is reasonably likely to result in pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon;
(o) enter into any commitment or transaction outside the conditions ordinary course of business consistent with past practice which would be material to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationCompany; or
(mp) enter into an agreement, contract, commitment take or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24action prohibited by this Section 4.4.
Appears in 1 contract
Samples: Stock Exchange Agreement (Sylvan Learning Systems Inc)
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of ParentAgreement, during the period from commencing on the date of this Agreement to hereof and ending at the Effective Time, the Company willshall, and will shall cause each of the its Subsidiaries to, conduct its operations only in the according to its ordinary course of business consistent with past practice and will use its reasonable best effortspractice, and will the Company shall, and shall cause each of the its Subsidiaries to to, use its all reasonable best efforts, efforts to preserve intact the its business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business maintain satisfactory relationships with itits customers, suppliers and employees and others with which it has business relationships. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toon Schedule 5.1, prior to the Effective Time, neither the Company nor any of its Subsidiaries will, without the prior written consent of the Parent:
(a) adopt any amendment amend or propose to amend its certificate of incorporation or by by-laws (or comparable organizational documentsequivalent governing instruments) (other than in connection with mergers between Subsidiaries of the Company);
(b) except authorize for issuances issuance, issue, sell, pledge, deliver or agree or commit to issue, sell, pledge or deliver (whether through the issuance or granting of any options, warrants, calls, subscriptions, stock appreciation rights or other rights or other agreements) any capital stock of the Subsidiaries to the Company any class or a wholly-owned Subsidiary, issue, reissue any securities convertible into or sell, or authorize the issuance, reissuance or sale of (i) additional exchangeable for shares of capital stock of any class, or securities convertible into capital stock class of any class, or any rights, warrants or options to acquire any convertible securities or capital stockthe Company, other than the issuance shares of Common Shares pursuant to: (A) the Company Stock issuable upon exercise of Company Options outstanding on the date hereof pursuant to of this Agreement in accordance with the present terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofthereof;
(c) split, combine or reclassify any shares of Company Stock or declare, pay or set aside or pay for payment any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) splitStock, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, acquire any shares of its capital stock, Company Stock;
(d) increase or establish any Plan or otherwise increase in any manner the compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective directors, officers or employees, other securitiesthan in the ordinary course of business or as required under any existing employment agreement or other Plan, or enter into any employment or severance agreement with or grant any severance or termination pay to any director, officer or employee of the Company or any of its Subsidiaries, grant any Company Options, make any similar award, or accelerate, amend or change the period of exercisability of Company Options or restricted stock granted under any employee stock plan or authorize cash payments in exchange for any such options or shares;
(e) except for (A) increases in salaryenter into any other agreements, wages and benefits of non-executive officers commitments or employees of contracts that are material to the Company or the and its Subsidiaries taken as a whole, other than in the ordinary course of business consistent with past practice;
(f) except as contemplated by this Agreement, (B) increases in salary, wages and benefits granted to officers and employees without the prior written consent of the Company Parent, otherwise take or cause to be taken any action described in clauses (b) through (g) of Section 3.8 between the Subsidiaries in conjunction with new hiresdate of this Agreement and the Effective Time;
(g) acquire or agree to acquire by merging or consolidating with, promotions or by purchasing a substantial portion of the stock or assets of, or by any other means, any business or any corporation, partnership, joint venture, association, or other changes in job status in the ordinary 19 23 course of business consistent with past practiceorganization or division thereof or;
(h) incur, assume or (C) increases in salarydraw down any indebtedness for borrowed money, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into except for borrowings in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practicebusiness;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, take any action that would is intended or is may reasonably likely be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue, or in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer VI not being satisfied;
(j) change its methods of accounting in effect at September 30, 1999, except as required by changes in GAAP or would SAP as concurred to by the Company's independent auditors;
(k) make any representation or warranty of the Company contained herein inaccurate in rescind any material election with respect atto Taxes, make a request for a Tax Ruling or as enter into a Closing Agreement with respect to Taxes, settle or compromise any material Tax matter, or, with respect to any material Tax matter, change any method of any time prior to, the Effective Time, accounting or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationreporting; or
(ml) enter into an agreementagree, contract, commitment commit or arrangement arrange to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of Parentas set forth in Schedule 6.01, during the period from the date of this Agreement to the Effective Time, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to their ordinary and usual course of business and consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement Agreement, or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries toSchedule 6.01, prior to the Effective Time, neither the Company nor any of it subsidiaries, as the case may be, will, without the prior written consent of Parent:
the Purchaser, (ai) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell, pledge or sellencumber, or authorize or propose the issuance, reissuance sale, pledge or sale encumbrance of (iA) additional any shares of capital stock of any classclass (including the shares of Common Stock or Preferred Stock), or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company or capital stockany of its subsidiaries for such shares, other than the issuance shares of Common Shares pursuant to: (A) the Stock issuable upon exercise of Options currently outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10Options, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares for shares of Common Stock or Preferred Stock outstanding on the date hereof;
; (cii) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or redeem, purchase or otherwise acquire, any of its outstanding securities (including the shares of Common Stock and Preferred Stock) or declare any dividends on Common Stock or Preferred Stock; (iii) split, combine or reclassify any shares of its capital stock, stock or declare or pay any dividend or distribution on any shares of its other securities;
capital stock of the Company; (eiv) except pursuant to agreements or arrangements in effect on the date hereof which have been disclosed to the Purchaser, authorize any capital expenditure in excess of $50,000 in the aggregate, make any acquisition or disposition of a material amount of assets or securities, or, except for (A) increases in salaryroutine contracts with customers and clients consistent with past practices, wages and benefits of non-executive officers enter into or employees amend or terminate any contract, material to the business of the Company and its subsidiaries taken as a whole, or release or relinquish any contact rights or claims, material to the Subsidiaries business of the Company and its subsidiaries taken as a whole; (v) pledge or encumber any material assets of the Company except in the ordinary course of business consistent with past practicebusiness; (vi) except for loans from Purchaser or Sub, incur any long-term debt for borrowed money or short-term debt for borrowed money in an aggregate amount in excess of $10,000; (Bvii) increases in salary, wages and benefits granted propose or adopt any amendments to officers and employees the Articles of the Company Incorporation or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee By- Laws of the Company or any of its subsidiaries; (viii) adopt a plan of complete or partial liquidation or resolutions providing for the Subsidiariescomplete or partial liquidation, or (v) establishdissolution, adoptmerger, enter intoconsolidation, or amend any collective bargainingrestructuring, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance recapitalization or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare reorganization of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary any of the Company;
its subsidiaries; (g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (iiix) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company in the ordinary course of business and consistent with past practice, or ; (iiix) make any loans, advances or capital contributions to, or investments in, any other person (other than loans or advances to subsidiaries and loans or advances to employees in accordance with past practices); (xi) except as required by applicable Laws, adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, severance, termination, employment or other employee benefit plan, agreement, trust, fund, policy or other arrangement for the benefit or welfare of any registered representative, agent, employee or director or former employee or director or, except as required by applicable Laws or in the ordinary course of business consistent with past practice and except for loansbusiness, advancesincrease the compensation or fringe benefits of any employee or pay any employee or pay any benefit not required by any existing plan, capital contributions arrangement or investments between agreement; (xii) make any wholly-owned Subsidiary and the Company tax election or another wholly-owned Subsidiary;
(h) modifysettle or compromise any federal, amend state, local or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunderforeign income tax liability, except in the ordinary course of business and consistent with past practice;
; (ixiii) change agree in writing or otherwise to take any of the accounting methods used by it unless foregoing actions or (xiv) fail to comply in all material respects with all applicable Laws. Following the date of this Agreement, the Company will review its financing documents to determine if the consent of any third party is required by GAAPin connection with the transactions contemplated hereby. If following such review, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for Company becomes actually aware that any such claim or assessment;
(j) adopt a plan of complete or partial liquidationconsent is required, dissolutionit will so notify the Purchaser, mergerand the parties hereto shall use their respective best efforts to secure such consent; provided, consolidationhowever, restructuring, recapitalization or other reorganization of that for this purpose "best efforts" shall not require the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail Purchaser to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate payment in order to secure any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24consents.
Appears in 1 contract
Conduct of Business of the Company. Except as required by From and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Sellers shall cause the Company to: (a) conduct its business in the ordinary and regular course in substantially the same manner heretofore conducted (including any conduct that is reasonably related, complementary or incidental thereto), (b) use commercially reasonable efforts to preserve substantially intact its business organization and to preserve the present commercial relationships with key Persons with whom it does business and (c) without the prior written consent of Parentthe Purchaser, during not do or take any of the period from following actions:
(i) take or omit to take any action that would reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect;
(ii) declare, set aside or pay a dividend on, or make any other distribution in respect of, any Equity Interests or Securities;
(iii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests or Securities or effect any recapitalization, stock dividends, stock split or like change in its capitalization;
(iv) acquire or agree to acquire in any manner (whether by merger or consolidation, the purchase of an equity interest in or a material portion of the assets of or otherwise) any business or any corporation, partnership, association or other business organization or division thereof of any other Person;
(v) amend, extend, renew, enter into or terminate any Material Contract (or Contract that would be classified as a “Material Contract” if entered into prior to the date hereof), as applicable;
(vi) increase the compensation, bonus, pension, welfare, severance or other fringe benefits payable to any Person by more than 5%; make any equity awards to any Person; pay or grant any severance, termination or change-of-control benefit to any Person; adopt, amend or terminate any Employee Benefit Plan or plan that would be an Employee Benefit Plan if in effect on the date hereof (unless such adoption or amendment is required to reflect applicable changes in the law) or amend the terms of this Agreement any outstanding equity-based awards; take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Employee Benefit Plan, to the Effective Timeextent not already provided in the mandatory provisions, if any, of such Employee Benefit Plan; change the manner in which contributions to Employee Benefit Plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or make or forgive any loans to directors, members, managers, officers or employees of the Company will(other than advances of expenses made in the ordinary course);
(vii) amend or enter into a collective bargaining agreement;
(viii) incur or assume any Indebtedness, and will cause each except current liabilities incurred in the ordinary course of business consistent with past practice;
(ix) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any Equity Interests or Securities;
(x) adopt any amendments to its Governing Documents;
(xi) make, change or revoke any Tax election, adopt or change any accounting period or any accounting method, file any amended Tax Return, enter into any closing agreement, settle any material Tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the Subsidiaries tolimitation period applicable to any Tax claim or assessment relating to the Company, conduct or destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Closing and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Entity;
(xii) sell or otherwise dispose of any assets in excess of $25,000 in the aggregate or subject to any Lien any of its operations only properties or assets, except for Permitted Liens;
(xiii) make any material change in its accounting principles or the methods by which such principles are applied for financial reporting purposes;
(xiv) write-down or write-up the value of any asset, or write-off any accounts receivable or notes receivable, other than in the ordinary course of business consistent with past practice and will use its reasonable best efforts, in accordance with GAAP and will cause each of the Subsidiaries upon notice to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and 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 required or permitted by this Agreement or as set forth in Section 6.01 of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documentsPurchaser;
(bxv) except for issuances accelerate or delay the payment of capital stock of accounts payable, accelerate or delay the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock collection of any classnotes or accounts receivable or otherwise fail to pay accounts payable and other business obligations or to collect accounts receivable, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, in each case other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice;
(xvi) settle any Proceedings that, (B) increases as a condition to such settlement, require payment in salary, wages and benefits granted to officers and employees excess of $25,000 or result in any limitation of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees conduct of the Company pursuant to collective bargaining agreements entered into Company’s business;
(xvii) make any capital expenditures, other than in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jxviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger)reorganization;
(kxix) pay, discharge incur or satisfy, commit to any other obligations or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), liabilities other than in the ordinary course of business and consistent with past practice not exceeding, individually or in the aggregate, $25,000;
(xx) exercise any rights of renewal with respect to any Real Property Lease or Personal Property Lease that by its terms would otherwise expire;
(xxi) grant any licenses under the Company Intellectual Property rights, other than non-exclusive licenses to customers in the ordinary course of business consistent with past practice;
(lxxii) takefail to use commercially reasonable efforts to prevent any insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated, except for ordinary course terminations and cancellations of such policies that are being replaced with policies providing for substantially equivalent coverage;
(xxiii) cancel, surrender, allow to expire or agree fail to commit to takerenew, any action that would Permits;
(xxiv) materially change an existing line of business or is reasonably likely to result in enter into any new line of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummationbusiness; or
(mxxv) enter into an agreementauthorize, contractcommit or agree to take or do, commitment whether in writing or arrangement to do otherwise, any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24actions specified in this clause (c).
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with the prior written consent of the Parent, during the period from the date of this Agreement to the Effective Time, the Company will, and will cause each of the Subsidiaries to, conduct its operations only in the ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the 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 required or permitted contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will not, and will not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of the Parent:
(a) adopt any amendment to its certificate of incorporation charter or by laws By-Laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue reissue, pledge or sell, or authorize the issuance, reissuance reissuance, pledge or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issuance of Common Shares Shares, in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to: (A) to the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shareshereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the its wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) except for (A) increases in salary, salary and wages granted to officers and benefits of non-executive officers or hourly employees of the Company or the Subsidiaries in conjunction with promotions or other changes in job status or normal compensation reviews in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay or award any benefit not required by any existing plan or arrangementarrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or (iiiperformance units pursuant to the Option Plans or otherwise) or grant any additional severance or termination pay to (except pursuant to existing agreements, plans or policies and other than as required by such agreements, plans existing agreements or policespolicies described in the Company Disclosure Statement), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, Subsidiaries or (v) establish, adopt, enter into, amend or amend waive any performance or vesting criteria under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employeesemployees (any of the foregoing being an "Employee Benefit Arrangement"), except in each case to the extent required by applicable law or regulation;; provided, however, that nothing herein will be deemed to prohibit the payment of benefits as they become payable; provided, further, however, that the Company may enter into severance agreements, in the form heretofore agreed upon with Parent, with each of Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxx Baltimore, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx.
(f) except as set forth in the Company Disclosure Schedule, acquire, sell, lease, mortgage, encumber lease or dispose of any assets (other than inventory) or securities with a value, individually or in which are material to the aggregate, in excess of $20.0 million, in Company and the case of rolling stock, or $3.0 million in the case of other assets or securitiesSubsidiaries, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-wholly owned Subsidiary and the Company or another wholly-wholly owned Subsidiary of the CompanySubsidiary;
(g) except as set forth in the Company Disclosure Schedule (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume incur or pre-pay debt in the ordinary course of business in amounts and for purposes consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-wholly owned Subsidiary subsidiary of the Company and the Company or another wholly-wholly owned Subsidiary;; or
(h) modifysettle or compromise any suit or claim or threatened suit or claim material to the transactions contemplated hereby or material to the Company and its Subsidiaries, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practicetaken as a whole;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
, (li) takemodify, amend or agree to commit to taketerminate any material contract, (ii) waive, release, relinquish or assign any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII contract (or any of the conditions Company's rights thereunder), right or claim, or (iii) cancel or forgive any indebtedness owed to the Offer Company or any of the Subsidiaries; provided, however, that the Company may not being satisfiedunder any circumstance waive or release any of its rights under any confidentiality agreement to which it is a party;
(j) make any Tax election not required by law or settle or compromise any Tax liability, in either case that is material to the Company and the Subsidiaries; or
(k) agree in writing or otherwise to take any of the foregoing actions prohibited under Section 5.01 or any action which would make cause any representation or warranty of the Company contained herein inaccurate in this Agreement to be or become untrue or incorrect in any material respect at, or as of any time prior to, the Effective Time, date when made or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24deemed made.
Appears in 1 contract
Conduct of Business of the Company. Except as required expressly contemplated by this Agreement or with the prior written consent of Parentas required by Applicable Law or any Governmental Entity, during the period from the date of this Agreement to the Effective TimeClosing Date, the Company willSeller shall, and will shall cause each of the Subsidiaries toCompany, conduct its operations USIS and their Affiliates to carry on the Business only in the ordinary course of business consistent with past practice and will and, to the extent consistent therewith, use its commercially reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the their Permits, current business organization of the Company and each of the Subsidiaries, to keep available the services of its organizations and their present officers material relationships with agents, insureds and employees, and to preserve the good will of those others having business relationships dealings with itthem. Without limiting the generality of the foregoing, and from the date of this Agreement to the Closing Date, except as otherwise required or permitted expressly contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure StatementAgreement, the Company will Seller shall not, and will shall cause its Affiliates (including the Company and USIS) not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentBuyer, do any of the following with respect to the Company or USIS or, as applicable, the Business:
(a) adopt (i) declare, set aside or pay any amendment dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of the Company’s outstanding capital stock, (ii) split, combine or reclassify any of the Company’s outstanding 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 outstanding capital stock or (iii) purchase, redeem (or establish a sinking fund with respect to its certificate redemption) or otherwise acquire any shares of incorporation or by laws or comparable organizational documents;
(b) except for issuances of outstanding capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, USIS or any rights, warrants or options to acquire any convertible securities such shares;
(b) (i) issue, sell, grant, pledge or otherwise encumber or dispose of any Transferred Assets or any shares of the Company’s or USIS’ capital stock, any other than the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof voting securities or as modified as contemplated by Section 2.10any securities convertible into, or (B) the conversion of Class A Common Sharesany rights, warrants or options to acquire, any such shares, voting securities or convertible securities or (ii) permit or allow any Transferred Assets or any shares of capital stock or other securities of the Company or USIS to become subject to any Lien (other than in respect ofthe case of a Transferred Asset, in lieu of, or in substitution for, Shares outstanding on the date hereofa Permitted Lien);
(c) declaresell, set aside lease, license or pay otherwise dispose of (including by way of reinsurance) any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock material assets (other than between any of the Company and any of the wholly-owned Subsidiariesinvestments);
(d) splitamend its certificate of incorporation, combine, subdivide, reclassify by-laws or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securitiescomparable organizational documents;
(e) except for (A) increases in salaryacquire any corporation, wages and benefits of non-executive officers partnership, joint venture, association or employees other business organization or division thereof, or substantially all of the Company or the Subsidiaries in the ordinary course assets of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), foregoing or (ii) pay merge or consolidate with any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationPerson;
(f) acquire, sell, lease, mortgage, encumber incur any indebtedness for borrowed money or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse guarantee or otherwise become liable responsible for any such indebtedness of another Person or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person Person;
(g) (i) make, revoke or amend any Tax election or settle or compromise any income Tax liability that would be material to the Company or USIS or (ii) take, cause or permit any other Person to take any action which could materially increase Buyer’s or any of its Affiliates’ liability for Taxes, except, in each case, in the ordinary course of business consistent with past practice;
(h) make any change in accounting methods, principles or practices used by the Company or USIS materially affecting its assets or liabilities, except insofar as may be required by Applicable Law or by a change in applicable accounting principles;
(i) amend, modify or change or waive any requirement under the Investment Guidelines;
(j) make any capital expenditures in excess of $500,000 individually or $1,000,000 in the aggregate;
(k) (i) renew, extend or terminate (including through permissive non-renewal) any Material Contract required to be listed on Section 3.15(a)(xi) of the Disclosure Schedule or, other than in the ordinary course of business consistent with past practice, any other Material Contract, (ii) amend or assign any Material Contract or enter into any Contract that would be a Material Contract if in effect on the date hereof or (iii) waive, release or assign any material rights or claims under any existing Material Contract;
(l) settle, compromise or release any Action or Governmental Order (except with respect to claims under Pre-Closing Insurance Contracts within applicable policy limits) or enter into a settlement with a Governmental Entity;
(m) enter into, amend or terminate any Affiliate Agreement;
(n) make any filings with any Governmental Entity relating to the withdrawal or the entering into by the Company or USIS from any lines or kinds of business;
(i) amend or enter into any (A) independent contractor contract other than in the ordinary course of business consistent with past practice, provided, that such ordinary course contract does not have an unexpired term exceeding one (1) year and by its terms may be terminated by the Company or USIS without notice of not more than sixty (60) days without liability, penalty or premium to Buyer, the Company or USIS or (B) employment Contract or, (ii) except as required by Applicable Law or any Company Employee Benefit Plan or Parent Employee Benefit Plan listed in Section 3.10(a) of the Disclosure Schedule in accordance with its terms on the date hereof as disclosed to Buyer, (A) grant or increase any severance, change in control, termination or similar compensation or benefits payable to any Employee or Consultant, (B) increase the compensation or benefits to which any Employee or Consultant is or may become entitled to (other than a non-material increase made in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions to any Employee who receives an annual base salary of $100,000 or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any less per year as of the Material Contracts date hereof), or waive, release or assign any rights or claims thereunder, except in otherwise materially increase the ordinary course of business aggregate compensation and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent benefits payable to any new material Tax accounting methodEmployees or Consultant, change any material Tax accounting method unless required by applicable law(C) grant, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII or any of the conditions to the Offer not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do grant, any equity or equity-incentive or cash incentive awards to any Employee, (D) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits payable to any Employee, or (E) enter into any plan or arrangement that would be a Company Employee Benefit Plan if in effect as of the date hereof, or terminate or amend in any material respect any Company Employee Benefit Plan; or
(p) agree to take any of the foregoingforegoing actions set forth in clauses (a) – (o). 20 24Prior to terminating the employment of any individual, who is employed by the Company or USIS (including employees on a leave of absence or time off or short or long term disability), Seller shall notify Buyer in writing and consider in good faith the views of Buyer with respect to any such proposed termination.
Appears in 1 contract
Conduct of Business of the Company. Except as required contemplated by this Agreement or with (including Section 5.2 of the prior written consent of ParentCompany Disclosure Schedule), during the period from the date of this Agreement to and continuing until the Effective TimeTime or until the termination of this Agreement pursuant to Section 7.1, (a) the Company will, and will cause each of the Subsidiaries to, shall conduct its operations only business in the ordinary and usual course of business consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with it. Without (b) without limiting the generality provisions of the foregoing, and except as otherwise required or permitted by clause (a) in this Agreement or as set forth in Section 6.01 of the Company Disclosure Statementparagraph, the Company will not, and will shall not permit any of the Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent (or, to the extent consistent with past practice with regard to the matter at issue, the prior oral consent of Parent:):
(ai) adopt declare, set aside or pay any amendment to dividends on or make any other distribution in respect of any of its certificate of incorporation or by laws or comparable organizational documentscapital stock;
(bii) except for issuances split, combine or reclassify any of its capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, issue or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than propose the issuance or authorization of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series for shares of its capital stock other than between or repurchase, redeem or otherwise acquire any shares of the Company and any of the wholly-owned Subsidiariesits capital stock;
(diii) splitissue, combinedeliver, subdividepledge, reclassify encumber or redeem, purchase or otherwise acquiresell, or authorize or propose to redeem the issuance, delivery, pledge, encumbrance or sale of, or purchase or otherwise acquirepropose the purchase of, any shares of its capital stockstock or securities convertible into, or rights, warrants or options to acquire, any such shares of capital stock or other convertible securities (other than the issuance of such capital stock to the Company, or upon the exercise or conversion of outstanding options or warrants in accordance with a stock plan in effect on the date of this Agreement or other convertible or exchangeable securities outstanding on the date hereof, in each case in accordance with their present terms), authorize or propose any change in its equity capitalization, or amend any of its the financial or other economic terms of such securities or the financial or other economic terms of any agreement relating to such securities;
(eiv) except for (A) increases in salaryamend its Articles of Incorporation, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions Bylaws or other changes organizational documents in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of the Subsidiaries, or manner;
(v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities with a value, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger);
(k) pay, discharge or satisfy, or fail to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, take any action that would or is reasonably likely be expected to result in any of the conditions to the Merger Transactions set forth in Article VII or any of the conditions to the Offer 6 not being satisfied;
(vi) merge or consolidate with any other Person, or would make acquire any representation assets or warranty capital stock of any other Person, other than acquisitions of assets in the ordinary course of business, such as for inventory or relating to the ordinary operations of the Company;
(vii) incur any indebtedness for money borrowed or guarantee any such indebtedness of another Person or increase indebtedness for money borrowed outstanding under any current agreement relating to indebtedness for money borrowed, except as disclosed on Section 5.2 of the Company contained herein inaccurate Disclosure Schedule or in the ordinary course of business;
(viii) make or authorize any capital expenditures of the Company, other than capital expenditures permitted pursuant to Section 5.2 of Company Disclosure Schedule and other than capital expenditures that are part of the Company's then existing budget, which has previously been approved by the Company's Board of Directors;
(ix) except as may be required by changes in applicable law or GAAP, change any method, practice or principle of accounting, or change in any material respect atits method of reporting income and deductions for United States federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended September 30, 2003, except as required by changes in law or regulation;
(x) enter into any new employment agreements, or as increase the compensation of any time prior to, the Effective Time, officer or that would materially impair the ability director of the Company or any senior executive of any of its subsidiaries or operating units (including entering into any bonus, severance, change of control, termination, reduction-in-force or consulting agreement or other employee benefits arrangement or agreement pursuant to consummate which such person has the Merger right to any form of compensation from the Company or any of its subsidiaries), other than as required by law or by written agreements in accordance effect on the date hereof with such person, or otherwise amend in any material respect any existing agreements with any such person or use its discretion to amend any Company Benefit Plan or accelerate the vesting or any payment under any Company Benefit Plan;
(xi) enter into any transaction with any officer or director of the Company, other than as provided for in the terms thereof of any agreement in effect on or materially delay such consummationprior to the date hereof and described in Section 5.2 of the Company Disclosure Schedule;
(xii) settle or otherwise compromise any material litigation, arbitration or other judicial or administrative dispute or proceeding relating to the Company or any of its subsidiaries; or
(mxiii) authorize or enter into an any contract, agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24.
Appears in 1 contract
Conduct of Business of the Company. Except as for matters set forth in Section 5.01 of the Company Disclosure Letter or otherwise expressly contemplated, expressly permitted or expressly required by this Agreement or required by applicable Law or with the prior written consent of ParentParent (which consent shall not be unreasonably witheld, during the period delayed or conditioned), from the date of this Agreement to the Effective Time, the Company willshall, and will shall cause each of the Subsidiaries Company Subsidiary to, conduct its operations only business in the ordinary course of business consistent with past practice and will use its commercially reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, efforts to preserve intact the its present organization, assets, employees and relationships with customers, suppliers, licensors, licensees and others having material business organization dealings with it. In addition, except for matters set forth in Section 5.01 of the Company and each of the SubsidiariesDisclosure Letter or otherwise expressly contemplated, to keep available the services of its and their present officers and 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 permitted or expressly required or permitted by this Agreement or as set forth in Section 6.01 required by applicable Law, from the date of the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, prior this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of declare, set aside or pay any classdividends on, or securities convertible into capital make any other distributions (whether in cash, stock or property) in respect of, any of any class, or any rights, warrants or options to acquire any convertible securities or its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of Common Shares pursuant to: (A) the exercise of Options outstanding on the date hereof pursuant to the terms thereof as in effect on the date hereof or as modified as contemplated by Section 2.10, or (B) the conversion of Class A Common Shares, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any for shares of its capital stock, or (iii) repurchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or options, warrants, convertible or exchangeable securities, stock-based performance units or other securities;
(e) rights to acquire any such shares of capital stock, except for (A) increases acquisitions of shares of Company Common Stock in salaryconnection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of Company Stock Options, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent each case in accordance with past practicetheir terms, (B) increases in salarythe withholding of shares of Company Common Stock to satisfy Tax obligations with respect to Company Stock Options, wages and benefits Company Restricted Stock Units, Company Performance Restricted Stock Units, other awards granted pursuant to officers and employees of the Company or the Subsidiaries Stock Plans, in conjunction each case in accordance with new hirestheir terms, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or and (C) increases in salary, wages and benefits to employees of the acquisition by the Company of Company Stock Options, Company Restricted Stock Units or other awards granted pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees (whether from the Company Stock Plans and Company Performance Restricted Stock Units in connection with the forfeiture of such awards, in each case in accordance with their terms;
(b) issue, grant, deliver or any of the Subsidiaries)sell, or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment Contract to sell or severance voting agreement withwith respect to any shares of its capital stock or options, warrants, convertible or exchangeable securities, stock-based performance units, equity awards denominated in shares of the Company’s capital stock (including any Company Stock Options, Company Restricted Stock Units, or Company Performance Restricted Stock Units) or other rights to acquire such shares, any directorVoting Company Debt or any other rights that give any person the right to receive any economic interest of a nature accruing to the holders of Company Common Stock, officer other than the issuance of Company Common Stock upon the exercise of Company Stock Options or other employee the settlement of Company Restricted Stock Units or Company Performance Restricted Stock Units which are outstanding as of the Company or any date of the Subsidiariesthis Agreement, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulationin accordance with their terms;
(fc) acquireamend its certificate of incorporation, sellby-laws or other comparable organizational documents, leaseexcept, mortgage, encumber or dispose in the case of any assets (other than inventory) or securities with a valueCompany Subsidiaries for amendments that would not reasonably be expected to, individually or in the aggregate, in excess of $20.0 million, in the case of rolling stock, or $3.0 million in the case of other assets or securities, or enter into any commitment be material to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Subsidiary and the Company or another wholly-owned Subsidiary of the Company;
(g) (i) incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company and the Subsidiaries may incurCompany Subsidiaries, assume or pre-pay debt in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practicetaken as a whole, or (iii) make any loans, advances materially impede or capital contributions to, or investments in, any other person except in delay the ordinary course consummation of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company or another wholly-owned SubsidiaryTransactions;
(h) modify, amend or terminate any of the Material Contracts or waive, release or assign any rights or claims thereunder, except in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(jd) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization, other than the Merger;
(e) acquire or agree to acquire, in a single transaction or a series of related transactions, whether by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any assets or properties (except to the extent otherwise expressly permitted under this Article V), business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person (other than any wholly-owned Company Subsidiary, or acquisitions of inventory in the ordinary course of business consistent with past practice), if the aggregate amount of consideration paid or transferred by the Company and the Company Subsidiaries would exceed $5,000,000;
(f) except as required pursuant to the terms of any Company Benefit Plan or Company Benefit Agreement or other written Contract, in each case, in effect on the date of this Agreement, (A) adopt, enter into, establish, terminate, materially amend or modify any collective bargaining agreement, Company Benefit Plan or Company Benefit Agreement, (B) grant to any current or former employee, director, executive officer or other individual service provider of the Company or any Company Subsidiary any material increase in compensation, (C) grant to any current or former employee, director, executive officer or other individual service provider of the Company or any Company Subsidiary any increase in severance or termination pay, (D) enter into any employment, consulting, severance or termination agreement with any employee, director, executive officer or other service provider of the Company or any Company Subsidiary or (E) take any action to accelerate any rights or benefits under any Company Benefit Plan or Company Benefit Agreement; provided that neither Section 5.01(b) nor the foregoing clauses of this Section 5.01(f) shall restrict the Company or any of the Company Subsidiaries from entering into or making available to newly hired employees or to employees, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements (including cash incentive grants), such plans, agreements, benefits and arrangements to have terms and amounts consistent with ordinary course past practice;
(g) make any change in accounting methods, principles or practices affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required (i) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by Law, including Regulation S-X under the Securities Act;
(h) sell, lease (as lessor), license or otherwise dispose of (including through any “spin-off”), or pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien), any properties or assets, except (i) sales, leases, licenses or other dispositions (A) of inventory in the ordinary course of business, (B) of immaterial Intellectual Property in the ordinary course of business consistent with past practice (including by permitting the rights with respect thereto to lapse), or (C) of properties or assets having a value no greater than $5,000,000 individually or $7,500,000 in the aggregate or (ii) abandonments of patent applications in the ordinary course of prosecution, where a continuation, continuation-in-part, request for continued examination or divisional application (or foreign equivalent of any of the foregoing) is filed;
(i) (i) incur, redeem, repurchase, prepay, defease, guarantee, assume or otherwise become liable for or modify in any material respects the terms of any indebtedness for borrowed money (except for short-term borrowings not in excess of $1,000,000 aggregate principal amount outstanding at any one time incurred in the ordinary course of business), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (ii) make any loans, advances or capital contributions to, or investments in (including by purchase of stock or securities of any Person), any other Person, other than to or in (A) the Company or any Company Subsidiary or (B) any acquisition not in violation of clause (e) above, and other than extensions of trade credit and advances of expenses to employees, in each case in the ordinary course of business consistent with past practice;
(j) other than in accordance with the Company’s capital expenditure budget made available to Parent prior to the date of this Agreement, make or agree to make any capital expenditure or expenditures that in the aggregate are in excess of $1,000,000 (it being understood that this clause (j) shall not limit any action permitted to be taken under clause (e) of this Section 5.01);
(k) except as required by Law, make, change or revoke any material Tax election, change any material tax accounting method, file any material amended Tax Return, enter into any closing agreement within the meaning of Section 7121 of the Code (or any comparable provision of state, local or foreign Law), request any material Tax ruling, or settle or compromise any material Tax liability or refund;
(l) except as is in the ordinary course of business, enter into, or modify, amend, waive any material right under, in each case in a manner that is materially adverse to the Company, or terminate, any Specified Contract or any Contract that, if existing on the date hereof, would have been a Specified Contract;
(m) commence, settle or compromise any Proceeding, except for settlements or compromises that (i) involve monetary remedies with a value not in excess of $1,000,000, with respect to any Proceeding, or $2,000,000, in the aggregate and (ii) do not impose any material restriction on the businesses of the Company or any of the Subsidiaries Company Subsidiaries; provided that the commencement, settlement or compromise of any Proceeding relating to Taxes shall be governed by Section 5.01(k) instead of this Section 5.01(m) and any payments made in respect thereof shall not be taken into account for purposes of determining compliance with the stated caps under clause (other than the Mergeri) of this paragraph (m);
(kn) pay, discharge or satisfy, or fail to pay, discharge or satisfy, enter into any claim, liability or obligation (contingent or otherwise), other than in the ordinary course new line of business and consistent with past practice;
(l) take, or agree not meaningfully related to commit to take, any action that would or is reasonably likely to result in any the business of the conditions to the Merger set forth in Article VII Company or any of the conditions to the Offer not being satisfied, or would make any representation or warranty Company Subsidiaries as of the Company contained herein inaccurate date hereof (and, for the avoidance of doubt, provided that any action permitted by this paragraph (m) remains subject to Section 5.02);
(o) amend in a manner that adversely impacts in any material respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability to conduct its business, terminate or allow to lapse any material Authorizations of the Company or any of the Company Subsidiaries;
(p) cancel or permit to consummate lapse any material Intellectual Property of the Merger in accordance with Company or any of the terms thereof or materially delay such consummationCompany Subsidiaries; or
(mq) enter into an agreementauthorize, contract, commitment commit or arrangement agree to do take any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Sapient Corp)
Conduct of Business of the Company. Except as required contemplated by this --- ---------------------------------- Agreement or with as disclosed in writing to the prior written consent of ParentInvestors in Schedule 4.1, during ------------ the period from the date of this Agreement to the Effective Timedate five business days after the Stockholder Meeting, the Company will, and its subsidiaries will cause each of the Subsidiaries to, conduct its operations only in the according to its ordinary and usual course of business and consistent with past practice and will use its reasonable best efforts, and will cause each of the Subsidiaries to use its reasonable best efforts, to preserve intact the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the good will of those having business relationships with itpractice. Without limiting the generality of the foregoing, and except as otherwise required or permitted by expressly provided in this Agreement or as set forth disclosed in Section 6.01 of writing to the Company Disclosure Statement, the Company will not, and will not permit any of the Subsidiaries to, Investors prior to the Effective Timedate five business days after the Stockholder Meeting, neither the Company nor any of its subsidiaries shall, without the prior written consent of Parent:
the Investors, (a) adopt any amendment to its certificate of incorporation or by laws or comparable organizational documents;
(b) except for issuances of capital stock of the Subsidiaries to the Company or a wholly-owned Subsidiary, issue, reissue sell or sellpledge, or authorize or propose the issuance, reissuance sale or sale pledge of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any classsuch shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities or capital stockof the Company for shares, other than the issuance of Common Shares pursuant to: (A) the exercise shares of Options outstanding on the date hereof Common Stock issuable pursuant to the terms thereof as of outstanding Stock Options and commitments disclosed in effect on the date hereof or as modified as contemplated by Section 2.102.2, or (B) issuance of shares of capital stock to the conversion Company by a wholly owned subsidiary of Class A Common Sharesthe Company, or (ii) any other securities in respect of, in lieu of, of or in substitution for, Shares for shares of Common Stock outstanding on the date hereof;
thereof; (cb) declare, set aside or pay any dividend or other distribution (whether in cash, capital stock, rights thereto or other assets, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any of the wholly-owned Subsidiaries;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any of its outstanding capital stock or other equity or debt securities; (c) declare or pay any dividend or distribution on any shares of its capital stockstock of the Company, except that a direct or any of its other securities;
(e) except for (A) increases in salary, wages and benefits of non-executive officers or employees indirect wholly owned subsidiary of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary 19 23 course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable may pay a dividend to its directors, officers or employees parent; (whether from the Company or d) make any acquisition of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement, or (iii) grant any severance or termination pay (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other employee a material amount of the Company or any of the Subsidiaries, or (v) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, mortgage, encumber or dispose of any assets (other than inventory) or securities capital expenditures in accordance with a value, individually or in the aggregate, Company's existing budget not in excess of $20.0 million100,000 for any single expenditure) or securities, in the case any disposition (including by way of rolling stockmortgage, license, encumber or $3.0 million in the case any Lien) of other a material amount of assets or securities, or enter into a material contract (except for entering into new contracts involving amounts under $5,000,000 in the ordinary course of business) or release or relinquish any commitment material contract rights not in the ordinary course of business, or make any amendments, or modifications thereto; (e) (i) incur any indebtedness for borrowed money (other than takedowns under the Company's existing credit facility) or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to do acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or enter into (ii) make any material commitment loans, advances of capital contributions to, or transaction outside the ordinary course of business consistent with past practice investments in, any other person, other than transactions between a wholly-owned Subsidiary and to the Company or another wholly-any direct or indirect wholly owned Subsidiary subsidiary of the Company;
; (gf) pay, discharge, settle or satisfy any claims, liabilities or obligations (i) incurabsolute, assume accrued, asserted or pre-pay any long-term debt unasserted, contingent or incur otherwise), other than the payment, discharge, settlement or assume any short-term debtsatisfaction, except that the Company and the Subsidiaries may incur, assume or pre-pay debt in the ordinary course of business consistent with past practice or in accordance with their terms, of workers compensation claims under existing lines $50,000 or claims by or against customers involving amounts under $200,000; (g) propose or adopt any amendments to the Certificate of creditIncorporation, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practiceas amended, or (iii) make any loans, advances or capital contributions to, or investments in, any other person except in the ordinary course Bylaws of business consistent with past practice and except for loans, advances, capital contributions or investments between any wholly-owned Subsidiary and the Company (or another wholly-owned Subsidiary;
any such similar organizational documents of its subsidiaries), except as contemplated hereby; (h) modifyenter into any new employment agreements with any officers, amend directors or terminate key employees or grant any material increases in the compensation or benefits to officers, directors and key employees; (i) take any of the Material Contracts or waive, release or assign any rights or claims thereunder, except actions set forth in the ordinary course of business and consistent with past practice;
(i) change any of the accounting methods used by it unless required by GAAP, make any material Tax election or change or revoke any material Tax election already made, adopt, request or consent to any new material Tax accounting method, change any material Tax accounting method unless required by applicable law, enter into any material closing agreement, settle any material Tax claim or assessment or consent to any material Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
Section 2.5 not otherwise specified herein; (j) adopt a plan settle the terms of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any litigation affecting the Company or any of the Subsidiaries its subsidiaries; (k) make any tax election or settle or compromise any income tax liability; (l) make or agree to make any new capital expenditures (other than capital expenditures in accordance with the MergerCompany's existing budget not in excess of $100,000 for any single expenditure);
; or (km) pay, discharge agree in writing or satisfy, or fail otherwise to pay, discharge or satisfy, any claim, liability or obligation (contingent or otherwise), other than in the ordinary course of business and consistent with past practice;
(l) take, or agree to commit to take, any action that would or is reasonably likely to result in take any of the conditions to the Merger set forth in Article VII foregoing actions or any of the conditions to the Offer not being satisfied, or action which would make any representation or warranty of the Company contained herein inaccurate in any material respect at, this Agreement untrue or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Merger in accordance with the terms thereof or materially delay such consummation; or
(m) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. 20 24incorrect.
Appears in 1 contract
