Conduct of Business Pending the Closing Date. The Stockholders agree that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that: (a) Each of the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and (b) Neither the Company nor any of the Subsidiaries: (i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock; (ii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure; (iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person; (iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates; (v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000; (vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person; (vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit; (ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub) (x) enter into any capital lease or lease any of its assets; (xi) make or rescind any tax election or settle or compromise any tax liability; (xii) make any change in its method of accounting; (xiii) except in the ordinary course of business consistent with past practice, 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 (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements contained in the Company Financial Statements; or (xiv) agree, in writing or otherwise, to take any of the foregoing actions. (c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 2 contracts
Samples: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
Conduct of Business Pending the Closing Date. The Stockholders agree that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on From the date hereof until the earlier Closing Date, except as otherwise required or contemplated hereunder or as required by applicable law or as set forth in Section 5.1 of the termination of this Agreement in accordance with its terms or the ClosingCompany Disclosure Schedule, the stockholders will take all actionCompany shall, or refrain from taking any action, necessary to ensure thatand shall cause its subsidiaries to:
(a) Each of the Company use all commercially reasonable efforts to conduct its business and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and
(b) Neither the Company nor any of the Subsidiaries:
(i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes subsidiaries in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees all material respects only in the ordinary course of business and consistent with past practicespractice;
(b) not amend its Articles of Association or Memorandum of Association or other organizational or governing documents or declare, set aside or pay any dividend or other distribution or payment in cash, stock or property in respect of its capital stock or acquire, directly or indirectly, any of its capital stock;
(c) not issue, grant, sell or pledge or agree or authorize the issuance, grant, sale or pledge of any shares of, or rights of any kind to acquire any shares of, its capital stock other than Shares issuable upon the exercise of stock options outstanding on the date hereof;
(d) not acquire, sell, transfer, lease or encumber any material assets except in the ordinary course of business and consistent with past practice;
(e) use all commercially reasonable efforts to preserve intact its business organizations and the business organizations of its subsidiaries, and to keep available the services of its present key officers and employees; provided, however, that to satisfy the foregoing obligation, the Company shall not be required to make any payments or enter into or amend any contractual arrangements or understandings, except in the ordinary course of business and consistent with past practice and that this provision shall not restrict the Company in any way from terminating the employment of its employees, other than its present key officers and employees;
(f) not adopt a plan of complete or partial liquidation or adopt resolutions providing for the complete or partial liquidation, dissolution, consolidation, amalgamation, merger, restructuring or recapitalization of the Company or any of it subsidiaries;
(g) not grant any severance or termination pay other (otherwise than pursuant to policies in effect on the letter agreement dated February 4date hereof) to, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employmentemployment agreement with, consulting any of its executive officers or severance agreement directors;
(h) not, except in the ordinary course of business consistent with past practice or arrangement pursuant to obligations imposed by collective bargaining agreements, increase the compensation payable or to become payable to its officers or employees, enter into any contract or other binding commitment in respect of any such increase with any present of its directors, officers or former other employees or any director, officer or other employeeemployee of its subsidiaries, or and not establish, adopt, enter into into, make any new grants or amend awards under or terminate amend, any collective bargaining agreement or Company Plan, except as required by applicable law, including any obligation to engage in good faith collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance to maintain tax-qualified status or other plan, agreement, trust, fund, policy or arrangement for as may be required by any Company Plan as of the benefit of any directors, officers or employeesdate hereof;
(viiii) mortgagenot settle or compromise any material claims or litigation or, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables except in the ordinary course of business, the Bridge Loan Agreementmodify, and the Cisco Financing Agreement) amend or issue terminate any debt securities of its material contracts or assumewaive, guarantee release or endorse assign any material rights or otherwise as an accommodation become responsible for the obligations claims, or make any payment, direct or indirect, of any Person or, make any loan or other extension of creditmaterial liability before the same becomes due and payable in accordance with its terms;
(ixj) make not take any investments or purchase or sell any material assets (action, other than purchases of network equipment reasonable and usual actions in the ordinary course of business in a manner and consistent with past practice with respect to accounting policies or procedures (including tax accounting policies and procedures), except as may be required by the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease SEC or lease any of its assetsthe Financial Accounting Standards Board;
(xik) not make or rescind any material tax election or settle permit any material insurance policy naming it as a beneficiary or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) a loss payable payee to be canceled or terminated without notice to Purchaser, except in the ordinary course of business consistent with past practice, pay, discharge ;
(l) not incur or satisfy pay or agree to pay any claims, liabilities fees or obligations expenses that would be required to be included in Section 3.17 of the Company Disclosure Schedule that are not so included;
(absolute, accrued, asserted m) not amend the Director Releases or unasserted, contingent incur or otherwise), pay or agree to pay any amount in excess of $7.5 million (including all legal fees and other than the payment, discharge or satisfaction expenses of (Asuch directors) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements contained in the Company Financial Statementsaggregate plus value added tax as prescribed by law against a duly issued value added tax invoice, less any amounts required to be withheld pursuant to applicable tax regulations, pursuant to the Director Releases; orand
(xivn) agree, in writing not authorize or otherwise, enter into an agreement to take do any of the foregoing actionsforegoing.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 2 contracts
Samples: Share Purchase and Tender Agreement (BMC Software Inc), Share Purchase and Tender Agreement (BMC Software Inc)
Conduct of Business Pending the Closing Date. The Stockholders Sxxxxx Resource and the Sxxxxx Resource Stockholders, to the extent within each Stockholder’s control, covenant and agree with Sxxxxx Recording that, except as permitted, required or specifically contemplated by, or otherwise described in, prior to the consummation of the transaction called for by this Agreement, and Closing, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on the date hereof until the earlier of the termination of this Agreement pursuant to its terms, unless Sxxxxx Recording shall otherwise consent in accordance writing, and except as otherwise contemplated by this Agreement, Sxxxxx Resource and the Sxxxxx Resource Stockholders, to the extent within each Stockholder’s control, will comply with its terms or each of the following prior to Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each Its business shall be conducted only in the ordinary and usual course. Sxxxxx Resource shall use reasonable efforts to keep intact its business organization and good will, keep available the services of its respective officers and employees, and maintain good relations with suppliers, creditors, employees, customers, and others having business or financial relationships with it, and it shall immediately notify Sxxxxx Recording of any event or occurrence which is material to, and not in the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; andof, Sxxxxx Resource;
(b) Neither the Company nor any of the Subsidiaries:
It shall not (i) amend its Articles or Certificate of Incorporation or its By-Laws (Bylaws or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sellsplit, combine, or authorize to issue or sell, reclassify any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other outstanding securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, set aside, or pay or set aside any dividend or other distribution or payment with respect toon, or splitmake or agree or commit to make any exchange for or redemption of any such securities payable in cash, combinestock or property;
(c) It shall not, redeem except as described in Schedule 6.2(c), (i) issue or reclassifyagree to issue any additional shares of, or purchase or otherwise acquire, rights of any kind to acquire any shares of of, its capital stock or its other securitiesof any class, or make any other payments to its Affiliates;
(vii) enter into any contract contract, agreement, commitment, or commitment arrangement with respect to capital expenditures any of the foregoing, except as set forth in excess of $25,000this Agreement;
(vid) acquireIt shall not create, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets ofincur, or by assume any other mannerlong-term or short-term indebtedness for money borrowed or make any capital expenditures or commitment for capital expenditures, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practicespractice;
(e) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, It shall not (i) adopt, enter into into, or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stockwarrant, pension, retirement, deferred compensation, employment, terminationseverance, severance termination or other employee benefit plan, agreement, trust, trust fund, policy or arrangement for the benefit or welfare of any officer, director, or employee, or (ii) agree to any material (in relation to historical compensation) increase in the compensation payable or to become payable to, or any increase in the contractual term of employment of, any officer, director or employee except, with respect to employees who are not officers or directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent accordance with past practice, or with the Company's business plan previously disclosed to Acquisition Sub)written approval of Sxxxxx Recording;
(xf) enter into It shall not sell, lease, mortgage, encumber, license or otherwise dispose of or grant any capital lease or lease interest in any of its assets;
assets or properties except for: (xii) make sales, encumbrances, and other dispositions or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except grants in the ordinary course of business and consistent with past practice, pay, discharge ; (ii) liens for taxes not yet due; (iii) liens or satisfy any claims, liabilities encumbrances that are not material in amount or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than effect and do not impair the payment, discharge or satisfaction use of (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against inproperty, or contemplated by, the consolidated financial statements contained (iv) as specifically provided for or permitted in the Company Financial Statements; orthis Agreement;
(xivg) agreeIt shall not enter into any strategic alliance, joint development or joint venture arrangement or agreement except with the written approval of Sxxxxx Recording;
(h) It shall not enter into any agreement, commitment, or understanding, whether in writing or otherwise, with respect to take any of the foregoing actions.matters referred to in subsections 6.2(a) through 6.2(g) above;
(ci) Each Stockholder shall notify the Stockholders' Representative in writing within five Business DaysIt will continue properly and promptly to file when due all tax returns, reports, and declarations required to be filed by it, and will pay, or make full and adequate provision for the Stockholders' Representative shall promptly notify Acquisition Sub payment of, all taxes and the Company in writing upon receipt of any such notice governmental charges due from any Stockholder, of any material adverse change in the business, assets, liabilities, results of or payable by it; and
(j) It will comply with all laws and regulations applicable to it and its operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 2 contracts
Samples: Reorganization Agreement (Steele Recording Corp), Reorganization Agreement (Steele Recording Corp)
Conduct of Business Pending the Closing Date. The Stockholders USAM and the USAM Members, to the extent within each Member’s control, covenant and agree with PUREBASE that, except as permitted, required or specifically contemplated by, or otherwise described in, prior to the consummation of the transaction called for by this Agreement, and Closing, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on the date hereof until the earlier of the termination of this Agreement pursuant to its terms, unless PUREBASE shall otherwise consent in accordance writing, and except as otherwise contemplated by this Agreement, USAM and the USAM Members, to the extent within each Member’s control, will comply with its terms or each of the following prior to Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each Its business shall be conducted only in the ordinary and usual course. USAM shall use reasonable efforts to keep intact its business organization and good will, keep available the services of its respective officers and employees, and maintain good relations with suppliers, creditors, employees, customers, and others having business or financial relationships with it, and it shall immediately notify PUREBASE of any event or occurrence which is material to, and not in the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; andof, USAM;
(b) Neither the Company nor any of the Subsidiaries:
It shall not (i) amend its Articles of Organization or Certificate of Incorporation Operating Agreement or its By-Laws (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or selldeclare, set aside, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securitieson, or make or agree or commit to make any other payments to exchange for or redemption of any of its AffiliatesMembership Interests payable in cash, stock or property;
(vc) It shall not, except as described in Schedule 6.2(c), (i) issue or agree to issue rights of any kind to acquire any of its Membership Interests, or (ii) enter into any contract contract, agreement, commitment, or commitment arrangement with respect to capital expenditures any of the foregoing, except as set forth in excess of $25,000this Agreement;
(vid) acquireIt shall not create, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets ofincur, or by assume any other mannerlong-term or short-term indebtedness for money borrowed or make any capital expenditures or commitment for capital expenditures, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practicespractice;
(e) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, It shall not (i) adopt, enter into into, or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stockwarrant, pension, retirement, deferred compensation, employment, terminationseverance, severance termination or other employee benefit plan, agreement, trust, trust fund, policy or arrangement for the benefit or welfare of any directorsofficer, director, or employee, or (ii) agree to any material (in relation to historical compensation) increase in the compensation payable or to become payable to, or any increase in the contractual term of employment of, any officer, manager or employee except, with respect to employees who are not officers or employees;
(viii) mortgagemanagers, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except in the ordinary course of business consistent accordance with past practice, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than with the payment, discharge or satisfaction written approval of (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements contained in the Company Financial Statements; or
(xiv) agree, in writing or otherwise, to take any of the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.PUREBASE;
Appears in 1 contract
Samples: Plan and Agreement of Reorganization (Port of Call Online Inc.)
Conduct of Business Pending the Closing Date. The Stockholders agree Company agrees that, except as permitted, set forth on Schedule 5.3 of the Company Disclosure Letter or unless expressly permitted or required or specifically contemplated by, or otherwise described in, by this Agreement, Agreement or otherwise consented to or approved in writing by Purchaser (which consent (i) shall not be unreasonably withheld, conditioned or delayed and (ii) in the Acquisition Subcase of Section 5.3(b)(xv), shall only be required of Mr. Edward D. Doherty which consent, in the case of storage and throuxxxxx Xxxxxxxxx, shall be deemed given if not received or affirmatively refused within twenty-four (24) hours after receipt by Mr. Doherty of the request therefor), during the period commencing on the date hereof until xxx xxxx xereof and ending at the earlier of (x) the Closing and (y) any termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary pursuant to ensure thatSection 6.3:
(a) Each it shall cause each of the Company and the its Subsidiaries to conduct their respective such Subsidiary's operations only according to their in accordance with the ordinary and usual course of business consistent of such Subsidiary, use such Subsidiary's commercially reasonable efforts to preserve intact, in all material respects, such Subsidiary's business organization, keep available, in all material respects, the services of such Subsidiary's officers and employees and maintain, in all material respects, satisfactory relationships with past practicelicensors, suppliers, distributors, clients, customers and others having significant business relationships with such Subsidiary; and
(b) Neither the Company nor any it shall cause each of the Subsidiariesits Subsidiaries not to:
(i) amend its Articles take any action to make any change in or Certificate amendment to such Subsidiary's articles of Incorporation or its By-Laws incorporation (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sell, or authorize to issue or sell, any shares of its such Subsidiary's share capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants)securities, or issue or sell, or authorize the issuance to issue or sale ofsell, any securities convertible intointo or exchangeable for, or options, warrants or rights to purchase or subscribe tofor, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its such Subsidiary's share capital stock or any other securities, or make any other changes in its such Subsidiary's capital structure;
(iii) sell sell, pledge or pledge dispose of or agree to sell sell, pledge or pledge dispose of any stock shares or other equity interest owned by it such Subsidiary's in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its such Subsidiary's share capital stock or its such Subsidiary's other securities, or make securities (other than (x) distributions to any other payments Subsidiary of the Company or (y) distributions to its Affiliatesthe Company to the extent necessary to make the distributions required by the Company Articles);
(v) enter into any contract or commitment with respect to capital expenditures with a value in excess of, or requiring expenditures in excess of, one million dollars ($1,000,000), individually, or enter into contracts or commitments with respect to capital expenditures with a value in excess of, or requiring expenditures in excess of, two million dollars ($2,000,000), in the aggregate, other than inventory purchased in the ordinary course of $25,000business;
(vi) acquire, by amalgamating, merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, Person or otherwise acquire any assets of any PersonPerson (other than the purchase of assets in the ordinary course of business);
(vii) except with the prior written consent of the Acquisition Sub or to the extent required by applicable Law or under applicable lawexisting employee or director benefit plans, rule Contracts, arrangements or regulationcollective bargaining Contracts in effect on the date of this Agreement, increase the compensation or fringe benefits of, or pay any bonuses to, of any of its such Subsidiary's directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) employees, or grant any bonus or severance or termination pay other than pursuant not currently required to the letter agreement dated February 4be paid under existing severance plans, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement Contract or arrangement with any of such Subsidiary's present or former directordirectors, officer officers or other employeeemployees, or establish, adopt, enter into or into, amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreementContract, trust, fund, policy or arrangement for the benefit of any such Subsidiary's directors, officers or employees; provided, that, without the prior consent of Purchaser, (A) the Operating Subsidiaries and their respective Subsidiaries may increase the aggregate annualized compensation paid to all of the employees of the Operating Subsidiaries and their respective Subsidiaries (other than employees who have an employment Contract with any Operating Subsidiary or any of their respective Subsidiaries or employees who are covered by any collective bargaining Contract) by an amount not to exceed four percent (4%) of the aggregate annualized compensation as of the date hereof payable to such employees, and (B) such Subsidiaries may, with respect to any employee of any Operating Subsidiary or any of their respective Subsidiaries having an employment Contract, (1) set the bonus target for such employee at an amount not in excess of seventy-five percent (75%) of such employee's base pay, (2) set the bonus target EBITDA for the Operating Subsidiaries and their respective Subsidiaries for fiscal year 2002 for the purpose of determining the incentive thresholds applicable to such Contract at an amount not lower than forty-two million seven hundred thousand dollars ($42,700,000) and (3) set the annual compensation increase for such employee at an amount not in excess of the minimum required by such employee's employment Contract;
(viii) transfer, lease, license, guarantee, sell, mortgage, pledge or encumber pledge, dispose of, subject to any assets Lien, (other than as security under Liens arising by operation of Law in the ordinary course of business including, without limitation, mechanics' or materialmens' Liens and maritime Liens, that certain Bridge Loan Facility Agreement by and between Parent and are not, individually or in the Company dated as of December 22aggregate, 1999 (the "Bridge Loan Agreement"material) or the Cisco Financing Agreement) otherwise encumber any material assets, or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of businessmaterial liability, the Bridge Loan Agreement, and the Cisco Financing Agreement) or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for the obligations of any Person or, (other than any other Subsidiary of the Company) or make any loan or other extension of credit;
(ix) make any investments or purchase or sell rescind any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)Tax election;
(x) enter into any capital lease except as required by applicable Law or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) GAAP, make any material change in its method of accounting;
(xiiixi) except adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xii) (x) 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 any other Subsidiary of the Company, or (y) make any loans or advances to any other Person, other than to any other Subsidiary of the Company, except, in the case of clause (x), for borrowings under existing credit facilities described in the Completed Commission Filings in the ordinary course of business consistent with past practicefor working capital purposes;
(xiii) 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;
(xiv) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction (x) of any such claims, liabilities or obligations in the ordinary course of business or (Ay) amounts outstanding under the Bridge Loan Agreement, and (B) of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) contained in the Company Financial StatementsCompleted Commission Filings;
(xv) enter into, materially modify, amend or terminate any Material Contract (other than any storage and throughput Contract that both (x) has a duration (immediately before terminating such Material Contract or immediately after entering into, modifying or, as the case may be, amending such Material Contract) of less than ninety (90) days and (y) involves even payment obligations throughout the term of such Contract);
(xvi) other than routine employee terminations for cause or in the ordinary course of business or as disclosed in the Completed Commission Filings, plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of any of such Subsidiary's employees; or
(xivxvii) enter into any Tax agreement or similar agreement with the Island Territory of Sint Eustatius or the Land Territory of the Netherlands Antilles; or
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kaneb Pipe Line Operating Partnership Lp)
Conduct of Business Pending the Closing Date. The Stockholders agree thatExcept such actions as shall be specifically agreed to by Buyer pursuant to advance written consent (which consent shall not be unreasonably withheld), except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition SubFirst American, during the period commencing on between the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each of the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and
(b) Neither the Company nor any of the SubsidiariesClosing Date, shall:
(i) amend operate its Articles or Certificate businesses only in the usual, regular, and ordinary manner and, to the extent consistent with such operation, use its best efforts to preserve its present business organizations intact, keep available the services of Incorporation or its By-Laws (or comparable governing documents); provided, however, the Company may amend present officers and preserve its Articles of Incorporation to reflect a new par value of the Company Common Stockpresent relationship with persons having business dealings with it;
(ii) issue or sell, or authorize to issue or sell, any shares maintain all of its capital stock or any other securities (other than assets in customary repair, order, and condition, reasonable wear and use excepted, and maintain insurance upon all of such assets in such amounts and of such kinds comparable to that in effect on the issuance date of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing this Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree maintain its books, accounts, and records in the usual, regular, and ordinary manner, on a basis consistent with prior years, and endeavor to sell or pledge any stock or other equity interest owned by comply with all laws applicable to it in any other Personand to the conduct of its businesses and to perform all of its obligations without default;
(iv) not enter or agree to enter into any merger or consolidation with any corporation or change the character of its businesses in any manner;
(v) not declare, pay pay, or set aside make any dividend or other distribution or payment with payments in respect to, or split, combine, redeem or reclassifyof shares of its capital stock, or purchase or otherwise acquire, redeem any of such shares other than the redemption of its capital preferred stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000by the Mortgage Company;
(vi) acquirenot (1) hire any employees; (2) make any increase in the compensation payable or to become payable by it to any director, by merging officer or consolidating withagent except in the ordinary course of business; (3) except for the June profit sharing distribution, by purchasing an equity interest in pay or a portion of the assets ofprovide for any bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, retirement, or other similar payment or arrangement; (4) pay or provide for any unfunded pensions not covered by any other mannerpension plan to which it is a party; and ( 5) enter into any employment or consulting agreement, any business or any Personsales agency, or otherwise acquire any assets other contract or arrangement with respect to the performance of any Personpersonal services;
(vii) not (1) incur or become subject to, or agree to incur or become subject to, any obligation or liability (contingent or otherwise) , except with in the prior written consent ordinary course of the Acquisition Sub business; (2) discharge or to the extent required under applicable law, rule satisfy any lien or regulation, increase the compensation or fringe benefits of, encumbrance or pay any bonuses toobligation or liability (contingent or otherwise), except in the ordinary course of business; ( 3) mortgage, pledge, or subject to lien or encumbrance any of its directorsassets; (4) sell, officers assign, transfer, convey, lease, or employees (other than year-end bonuses not exceeding $20,000 otherwise dispose of any of its assets except in the aggregate and compensation increases for employees ordinary course of business; (5) acquire or agree to acquire any assets except in the ordinary course of business;(6) cancel, compromise, or postpone any debt or claim except in the ordinary course of business; (7) waive any right, except in the ordinary course of business and consistent with past practices) not of material value; (8) transfer or grant any severance rights under any concessions, licenses, patents, inventions, trade names, trademarks, copyrights, or termination pay with respect to know-how; (9) enter into, modify, change, or terminate any existing license, lease, contract, or other than pursuant to the letter agreement dated February 4documents; (10) make any capital expenditures in excess of $5,000.00, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, commitment therefor; (11) enter into or amend or terminate any collective bargainingbargaining agreement or, bonusthrough negotiation or otherwise, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of make any directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) commitment or incur any liability to any labor organization; (12) enter into any transactions or modify make or enter into any indebtedness contract or other liability (other than the incurrence commitment that by reason of trade payables its size or otherwise is not in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x; ( 13) enter into any capital lease contract, lease, or lease commitment with any member of the family of any officer, director, employee, or stockholder of or corporation affiliated with First American, or loan or otherwise make any advances to any of its assets;such entities or persons.
(xiviii) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any no change in its method of accounting;
(xiii) except in the ordinary course of business consistent with past practice, 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 (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements contained in the Company Financial Statements; or
(xiv) agree, in writing or otherwise, to take any of the foregoing actionsbanking policies.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders Each of the Sellers agree that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on after the date hereof until and prior to the Closing or earlier termination hereof, unless specifically provided for herein, in Section 7.7 of the termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all actionSellers’ Disclosure Letter, or refrain from taking any actionpursuant to the prior written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), necessary to ensure thateach of the Sellers and the Company will, and where appropriate, will cause the Funds to:
(a) Each cause the Business to be conducted only in the ordinary course consistent with past practice in material compliance with Applicable Law;
(b) prevent any change to the Organizational Documents of the Company;
(c) prevent any change in the authorized, issued or outstanding interests of the Company (other than changes to such interests of the Company resulting solely from the issuance or redemption of such securities by the Company);
(d) prevent the payment of any carried interest or return of capital or other distributions owed or payable to the Company;
(e) use their reasonable commercial efforts to preserve the business organization and structure of the Company and the Subsidiaries conduct their respective operations only according Sellers and to their keep available the services of the present employees and agents of the Company and the Sellers, and to preserve the good will of customers, suppliers, employees and others having business relations with the Company and the Sellers;
(f) consistent with past practice, maintain all assets owned, leased or regularly used by the Company or the Sellers in good operating condition and repair, ordinary wear and usual tear excepted, and will use its reasonable commercial efforts to maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(g) refrain from, in a single transaction or a series of related transactions, selling, leasing, pledging, encumbering or otherwise disposing of, or agreeing to sell (or engage in a sale-leaseback), lease (whether such lease is an operating or capital lease), pledge, encumber or otherwise dispose of, any of the material assets of the Business, other than in the ordinary course of business consistent with past practice; and;
(bh) Neither the Company nor any of the Subsidiaries:
refrain from, (i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents)incurring any Indebtedness; provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) or issue issuing any debt securities or assumeassuming, guarantee guaranteeing or endorse endorsing, or otherwise as an accommodation become responsible for for, the obligations of any Person; (iii) making any loans, advances, capital contributions or investments in any Person or, make any loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except in the ordinary course of business consistent with past practice, pay, discharge ; or satisfy any claims, liabilities (iv) authorizing capital expenditures or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), purchases of fixed assets other than in the paymentordinary course of business consistent with past practice;
(i) refrain from adopting a plan or agreement of complete or partial liquidation, discharge dissolution, merger, consolidation, restructuring, recapitalization or satisfaction of (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities other material reorganization or obligations reflected any other transaction that would preclude or reserved against inbe inconsistent in any material respect with, or contemplated byhinder or delay in any material respect, the consolidated financial statements contained consummation of, the transactions contemplated hereby;
(j) refrain from settling any Action or Claim if the Company, the Sellers or any of the Funds would be required to pay in excess of $25,000 individually or in the Company Financial Statements; or
(xiv) agreeaggregate or if such settlement would obligate the Company, in writing the Sellers or otherwise, any of the Funds to take any material action or restrict the Company, the Sellers or any of the Funds or the Business in any material respect from taking any action at or after the Closing; and
(k) refrain from authorizing any of, or committing or agreeing to take any of, the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders PUREBASE and the PUREBASE Stockholders, to the extent within each Stockholder’s control, covenant and agree with POCO that, except as permitted, required or specifically contemplated by, or otherwise described in, prior to the consummation of the transaction called for by this Agreement, and Closing, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on the date hereof until the earlier of the termination of this Agreement pursuant to its terms, unless POCO shall otherwise consent in accordance writing, and except as otherwise contemplated by this Agreement, PUREBASE and the PUREBASE Stockholders, to the extent within each Stockholder’s control, will comply with its terms or each of the following prior to Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each Its business shall be conducted only in the ordinary and usual course. PUREBASE shall use reasonable efforts to keep intact its business organization and good will, keep available the services of its respective officers and employees, and maintain good relations with suppliers, creditors, employees, customers, and others having business or financial relationships with it, and it shall immediately notify POCO of any event or occurrence which is material to, and not in the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; andof, PUREBASE;
(b) Neither the Company nor any of the Subsidiaries:
It shall not (i) amend its Articles or Certificate of Incorporation or its By-Laws (Bylaws or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sellsplit, combine, or authorize to issue or sell, reclassify any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other outstanding securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, set aside, or pay or set aside any dividend or other distribution or payment with respect toon, or splitmake or agree or commit to make any exchange for or redemption of any such securities payable in cash, combinestock or property;
(c) It shall not, redeem except as described in Schedule 6.2(c), (i) issue or reclassifyagree to issue any additional shares of, or purchase or otherwise acquire, rights of any kind to acquire any shares of of, its capital stock or its other securitiesof any class, or make any other payments to its Affiliates;
(vii) enter into any contract contract, agreement, commitment, or commitment arrangement with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except in the ordinary course of business consistent with past practice, 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 (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements contained in the Company Financial Statements; or
(xiv) agree, in writing or otherwise, to take any of the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative foregoing, except as set forth in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.this Agreement;
Appears in 1 contract
Samples: Plan and Agreement of Reorganization (Port of Call Online Inc.)
Conduct of Business Pending the Closing Date. The Stockholders Each of the Sellers agree that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on after the date hereof until and prior to the Closing or earlier of the termination of this Agreement hereof, unless specifically provided for herein, in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each Section 7.7 of the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and
(b) Neither the Company nor any of the Subsidiaries:
(i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sellDisclosure Letter, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub Purchaser (which consent will not be unreasonably withheld, delayed or conditioned) each of the Sellers and the Company will and, where appropriate, will cause the Subsidiaries of the Company to:
(a) cause the Business to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees be conducted only in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement practice in material compliance with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employeesApplicable Law;
(viiib) mortgage, pledge or encumber prevent any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and change to the Organizational Documents of the Company dated or any of its Subsidiaries;
(c) refrain from entering into any new Contract that would have been, if effective as of December 22the date hereof, 1999 a Material Contract, or to prevent any amendment of or alteration to any existing Material Contract (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables except in the ordinary course of business), the Bridge Loan Agreement, and the Cisco Financing Agreementin each case excluding Investment Advisor Contracts or any subscription (or similar) agreement with any new 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 loan or other extension of creditexisting Funds Client;
(ixd) make prevent any investments change in the authorized, issued or purchase or sell any material assets outstanding interests of the Company and its Subsidiaries (other than purchases changes to such interests of network equipment in the ordinary course Company’s Subsidiaries resulting solely from the issuance or redemption of such securities by the Company or a wholly-owned Subsidiary of the Company);
(e) prevent the payment prior to the Closing of any carried interest or return of capital or other distributions owed or payable after the Closing to the Company or its Subsidiaries;
(f) use their commercially reasonable efforts to preserve the business in a manner consistent organization and structure of the Company and its Subsidiaries and CAM, and to keep available the services of the present employees and agents of the Company, its Subsidiaries and CAM and to preserve the good will of customers, suppliers, employees and others having business relations with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of , its assetsSubsidiaries and CAM;
(xig) make consistent with past practice, maintain all assets owned, leased or rescind any tax election or settle or compromise any tax liabilityregularly used by the Company, its Subsidiaries and CAM in good operating condition and repair, ordinary wear and tear excepted, and will maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(xiih) make refrain from, in a single transaction or a series of related transactions, selling, leasing, pledging, encumbering or otherwise disposing of, or agreeing to sell (or engage in a sale-leaseback), lease (whether such lease is an operating or capital lease), pledge, encumber or otherwise dispose of, any change in its method of accounting;
(xiii) except the material assets of the Business, other than in the ordinary course of business consistent with past practice;
(i) refrain from, pay(i) incurring any Indebtedness except in the ordinary course of business; (ii) issuing any debt securities or assuming, discharge guaranteeing or satisfy endorsing, or otherwise as an accommodation become responsible for, the obligations of any claimsPerson; (iii) making any loans, liabilities advances, capital contributions or obligations investments in any Person except in the ordinary course of business; or (absoluteiv) authorizing capital expenditures or purchases of fixed assets, accrued, asserted or unasserted, contingent or otherwise)in each case, other than in the paymentordinary course of business;
(j) except as (x) as contemplated by this Agreement or (y) as required by applicable laws, discharge refrain from:
(i) granting any increases in the compensation of any of its current, former or satisfaction prospective directors, officers, consultants or employees inconsistent with past practice and outside of the ordinary course of business;
(Aii) amounts outstanding under paying or agreeing to pay to any current, former or prospective director, officer, consultant or key employee of the Bridge Loan AgreementCompany or its Subsidiaries, and (B) claimswhether past or present, liabilities any pension, retirement allowance or obligations reflected or reserved against in, other material employee benefit not required or contemplated by, by any of the consolidated financial statements contained existing Company Benefit Plans as in effect on the Company Financial Statementsdate hereof; or
(xiviii) agreeenter into any new, or amend any existing employee benefit plan employment, severance or termination agreement or arrangement with any current, former or prospective director, officer, consultant or key employee or current or prospective employee of any of the Company or its Subsidiaries;
(k) refrain from adopting a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any other transaction that would preclude or be inconsistent in writing any material respect with, or otherwisehinder or delay in any material respect, the consummation of, the transactions contemplated hereby;
(l) refrain from settling any Action or Claim if the Company or any of its Subsidiaries would be required to pay in excess of twenty-five thousand dollars ($25,000) individually or in the aggregate or if such settlement would obligate the Company or any of its Subsidiaries to take any material action or restrict the Company, any of its Subsidiaries or the Business in any material respect from taking any action at or after the Closing;
(m) refrain from amending (unless any such amendment reduces the fees to be shared with the counterparty) or extending the term of any fee sharing agreement set forth in Section 5.11(a)(ii) of the Company Disclosure Letter; and
(n) refrain from authorizing any of, or committing or agreeing to take any of, the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders agree Each of the Sellers agrees that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on after the date hereof until and prior to the Closing or earlier termination hereof, unless specifically provided for herein, in Section 7.7 of the termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all actionCompany Disclosure Letter, or refrain from taking any actionpursuant to the prior written consent of the Purchaser (which consent will not be unreasonably withheld, necessary to ensure thatdelayed or conditioned) each of the Sellers and the Company will and, where appropriate, will cause the Subsidiaries of the Company to:
(a) Each cause the Business to be conducted only in the ordinary course consistent with past practice in material compliance with Applicable Law;
(b) refrain from making and prevent any change to the Organizational Documents of the Company or any of its Subsidiaries;
(c) refrain from entering into any new Contract that would have been, if effective as of the date hereof, a Material Contract (except in the ordinary course of business), or to prevent any amendment of or alteration to any existing Material Contract (except in the ordinary course of business), in each case excluding Investment Advisory Contracts or any subscription (or similar) agreement with any new or existing Funds Client;
(d) prevent any change in the authorized, issued or outstanding interests of the Company and its Subsidiaries (other than changes to such interests of the Company’s Subsidiaries conduct resulting solely from the issuance or redemption of such securities by the Company or a wholly-owned Subsidiary of the Company);
(e) prevent the payment of any carried interest or return of capital or other distributions owed or payable to the Company or its Subsidiaries;
(f) use their respective operations only according commercially reasonable efforts to their preserve the business organization and structure of the Company and its Subsidiaries and to keep available the services of the present employees and agents of the Company, its Subsidiaries and Glenrock and to preserve the good will of customers, suppliers, employees and others having business relations with the Company, its Subsidiaries and Glenrock;
(g) consistent with past practice, maintain all assets owned, leased or regularly used by the Company, its Subsidiaries and Glenrock in good operating condition and repair, ordinary wear and usual tear excepted, and will maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(h) refrain from, in a single transaction or a series of related transactions, selling, leasing, pledging, encumbering or otherwise disposing of, or agreeing to sell (or engage in a sale-leaseback), lease (whether such lease is an operating or capital lease), pledge, encumber or otherwise dispose of, any of the material assets of the Business, other than in the ordinary course of business consistent with past practice; and
(b) Neither the Company nor any of the Subsidiaries:;
(i) amend its Articles or Certificate of Incorporation or its By-Laws refrain from, (or comparable governing documents)i) incurring any Indebtedness; provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) or issue issuing any debt securities or assumeassuming, guarantee guaranteeing or endorse endorsing, or otherwise as an accommodation become becoming responsible for for, the obligations of any Person; (iii) making any loans, advances, capital contributions or investments in any Person or, make any loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except in the ordinary course of business consistent with past practice; or (iv) authorizing capital expenditures or purchases of fixed assets, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), in each case other than in the paymentordinary course of business consistent with past practice;
(j) except as required (x) as contemplated by this Agreement or (y) by Applicable Laws, discharge refrain from:
(i) granting any increases in the compensation of any of its current, former or satisfaction prospective directors, officers, consultants or employees inconsistent with past practice and outside of the ordinary course of business;
(Aii) amounts outstanding under paying or agreeing to pay to any current, former or prospective director, officer, consultant or key employee of the Bridge Loan AgreementCompany or its Subsidiaries, and (B) claimswhether past or present, liabilities any pension, retirement allowance or obligations reflected or reserved against in, other material employee benefit not required or contemplated by, by any of the consolidated financial statements contained existing Company Benefit Plans as in effect on the Company Financial Statementsdate hereof; or
(xiviii) agreeenter into any new, or amend any existing employee benefit plan, employment, severance or termination agreement or arrangement with any current, former or prospective director, officer, consultant or key employee or current or prospective employee of any of the Company or its Subsidiaries;
(k) refrain from adopting a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any other transaction that would preclude or be inconsistent in writing any material respect with, or otherwisehinder or delay in any material respect, the consummation of, the transactions contemplated hereby;
(l) refrain from settling any Action or Claim if the Company or any of its Subsidiaries would be required to pay in excess of One Hundred Thousand Dollars (US $100,000) individually or in the aggregate or if such settlement would obligate the Company or any of its Subsidiaries to take any material action or restrict the Company, any of its Subsidiaries or the Business in any material respect from taking any action at or after the Closing;
(m) refrain from amending (unless any such amendment reduces the fees to be shared with the counterparty) or extending the term of any fee sharing agreement set forth in Section 5.11(a)(ii) of the Company Disclosure Letter; and
(n) refrain from authorizing any of, or committing or agreeing to take any of, the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders Orix and Equalnet agree that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Subother parties to this Agreement, during the period commencing on the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure thatEffective Time:
(a) Each of the Company Orix, Equalnet and the their respective Subsidiaries shall conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and
(b) Neither the Company Orix, Equalnet nor any of the Subsidiariestheir respective Subsidiaries shall:
(i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents); providedPROVIDED, howeverHOWEVER, the Company may that Equalnet shall be permitted to effect a reverse stock split or amend its Articles or Certificate of Incorporation to reflect a new par value increase the number of authorized Equalnet Shares to the Company Common Stockextent required by this Agreement;
(ii) except as set forth in the Orix Disclosure Letter or the Equalnet Disclosure Letter, as the case may be, or in the ordinary course of business consistent with past practice, issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants)securities, or issue or sell, or authorize the issuance to issue or sale ofsell, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure; PROVIDED, HOWEVER, that Equalnet shall be permitted to effect a reverse stock split or make any other changes to its capital structure (and Equalnet agrees to make such changes) necessary to ensure that the Equalnet Shares shall continue to be quoted on the NSCM;
(iii) except as set forth in the Orix Disclosure Letter or the Equalnet Disclosure Letter, as the case may be, or in the ordinary course of business consistent with past practice, sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) except in the ordinary course of business consistent with past practice, declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities; PROVIDED, or make any other payments HOWEVER, that the Series A Convertible Preferred Stock may be amended to its Affiliatespermit the payment of dividends in kind;
(v) enter into any material contract or commitment with respect to capital expenditures in excess of $25,000expenditures;
(vi) except as set forth in the Orix Disclosure Letter or the Equalnet Disclosure Letter, as the case may be, or in the ordinary course of business consistent with past practice, acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under benefit plans, agreements, collective bargaining agreements or their arrangements as in effect on the date of this Agreement or applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, of any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(viii) except in the ordinary course of business consistent with past practice, transfer, lease, license, guarantee, sell, mortgage, pledge pledge, dispose of, encumber or encumber subject to any lien, any material assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of businessmaterial liability, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment except in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) past practice, make or rescind any material tax election or settle or compromise any material tax liability;
(xiix) except as required by applicable law or GAAP, make any material change in its method of accounting;
(xiiixi) except in the ordinary course of business consistent with past practice, pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of (A) amounts outstanding under the Bridge Loan Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) contained in the Company Commission Filings or the Orix Financial Statements; or
(xivxii) agree, in writing or otherwise, to take any of the foregoing actions.
(c) Each Stockholder Neither Equalnet nor any of its Subsidiaries shall notify cancel or let lapse any policy of insurance for the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt directors and/or officers of Equalnet or any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledgeits Subsidiaries.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders agree Each of the Sellers agrees that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on after the date hereof until and prior to the Closing or earlier of the termination of this Agreement hereof, unless specifically provided for herein, in accordance with its terms or the Closing, the stockholders will take all action, or refrain from taking any action, necessary to ensure that:
(a) Each Section 7.7 of the Company and the Subsidiaries conduct their respective operations only according to their ordinary and usual course of business consistent with past practice; and
(b) Neither the Company nor any of the Subsidiaries:
(i) amend its Articles or Certificate of Incorporation or its By-Laws (or comparable governing documents); provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sellDisclosure Letter, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub Purchaser (which consent will not be unreasonably withheld or delayed), each of the Sellers and the Company will and, where appropriate, will cause the Subsidiaries of the Company to:
(a) refrain from making any change to the extent required under applicable law, rule Organizational Documents of the Company or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directorsSubsidiaries;
(b) use reasonable efforts to preserve the business organization and structure of the Company and its Subsidiaries and to keep available the services of the present employees and agents of the Company, officers or its Subsidiaries and the Investment Advisor and to preserve the good will of customers, suppliers, employees and others having business relations with the Company, its Subsidiaries and the Investment Advisor;
(other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and c) consistent with past practices) practice, maintain all assets owned, leased or grant any severance or termination pay regularly used by the Company, its Subsidiaries and the Investment Advisor in good operating condition and repair, ordinary wear and tear excepted, and will maintain existing insurance coverage on such assets as well as other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employeesexisting insurance coverage;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) 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 loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiiid) except in the ordinary course of business consistent with past practice, payprevent the Company from, discharge (i) incurring any Indebtedness; (ii) issuing any debt securities or satisfy assuming, guaranteeing or endorsing, or otherwise as an accommodation becoming responsible for, the obligations of any claimsPerson; (iii) making any loans, liabilities advances, capital contributions or obligations investments in any Person; or (absoluteiv) authorizing capital expenditures or purchases of fixed assets;
(e) except (x) in the ordinary course of business consistent with past practice, accrued(y) as contemplated by this Agreement, asserted or unasserted(z) as required by applicable laws, contingent refrain from:
(i) granting any increases in the compensation of any of its current, former or otherwise)prospective directors, officers, consultants or employees (other than the paymentpayment of customary bonuses or similar compensation); provided that in no event shall anything herein be construed to prevent the Company from making distributions to a Seller in respect of such Seller’s positive capital account balance;
(ii) paying or agreeing to pay to any current, discharge former or satisfaction prospective director, officer, consultant or key employee of (A) amounts outstanding under the Bridge Loan Company or its Subsidiaries, whether past or present, any pension, retirement allowance or other material employee benefit not required or contemplated by any of the existing Company Benefit Plans and/or the S&C Agreement, and (B) claims, liabilities or obligations reflected or reserved against in, or contemplated by, in each case as in effect on the consolidated financial statements contained in the Company Financial Statementsdate hereof; or
(xiviii) agreeenter into any new, or amend any existing employee benefit plan employment, severance or termination agreement or arrangement with any current, former or prospective director, officer, consultant or key employee or current or prospective employee of any of the Company or its Subsidiaries;
(f) refrain from adopting a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any other transaction that would preclude or be inconsistent in writing any material respect with, or otherwisehinder or delay in any material respect, the consummation of, the transactions contemplated hereby;
(g) refrain from settling any Action or Claim if the Company or any of its Subsidiaries (other than any Fund) would be required to pay in excess of $25,000 individually or in the aggregate or if such settlement would obligate the Company or any of its Subsidiaries (other than any Fund) to take any material action or restrict the Company, any of its Subsidiaries (other than any Fund) or the Business in any material respect from taking any action at or after the Closing;
(h) refrain from amending (unless any such amendment reduces the fees to be shared with the counterparty) or extending the term of any fee sharing agreement set forth in Section 5.11(a)(ii) of the Company Disclosure Letter; and
(i) refrain from authorizing any of, or committing or agreeing to take any of, the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
Appears in 1 contract
Conduct of Business Pending the Closing Date. The Stockholders agree Seller agrees that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement, or otherwise consented to or approved in writing by the Acquisition Sub, during the period commencing on after the date hereof until and prior to the Closing or earlier termination hereof, unless specifically provided for herein, in Section 7.7 of the termination Company Disclosure Letter, or pursuant to the prior written consent of this Agreement in accordance with its terms the Purchaser (which consent will not be unreasonably withheld, delayed or conditioned) the Seller and the Company will and, where appropriate, will cause the Investment Advisor or the Closing, Subsidiaries of the stockholders will take all action, or refrain from taking any action, necessary to ensure thatCompany to:
(a) Each cause the Business to be conducted only in the ordinary course consistent with past practice in material compliance with Applicable Law;
(b) prevent any change to the Organizational Documents of the Company or any of its Subsidiaries;
(c) refrain from entering into any new Contract that would have been, if effective as of the date hereof, a Material Contract, or to prevent any amendment of or alteration to any existing Material Contract (except in the ordinary course of business), in each case excluding Investment Advisor Contracts or any subscription (or similar) agreement with any new or existing Funds Client;
(d) prevent any change in the authorized, issued or outstanding interests of the Company and its Subsidiaries (other than changes to such interests of the Company’s Subsidiaries conduct resulting solely from the issuance or redemption of such securities by the Company or a wholly-owned Subsidiary of the Company);
(e) prevent the payment of any carried interest or return of capital or other distributions owed or payable to the Company or its Subsidiaries;
(f) use their respective operations only according commercially reasonable efforts to their preserve the business organization and structure of the Company, its Subsidiaries, the Investment Advisor and the Seller, and to keep available the services of the present employees and agents of the Company, its Subsidiaries, the Investment Advisor and the Seller and to preserve the good will of customers, suppliers, employees and others having business relations with the Company, its Subsidiaries, the Investment Advisor and the Seller;
(g) consistent with past practice, maintain all assets owned, leased or regularly used by the Company, its Subsidiaries, the Investment Adviosr and the Seller in good operating condition and repair, ordinary wear and usual tear excepted, and will maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(h) refrain from, in a single transaction or a series of related transactions, selling, leasing, pledging, encumbering or otherwise disposing of, or agreeing to sell (or engage in a sale-leaseback), lease (whether such lease is an operating or capital lease), pledge, encumber or otherwise dispose of, any of the material assets of the Business, other than in the ordinary course of business consistent with past practice; and
(b) Neither the Company nor any of the Subsidiaries:;
(i) amend its Articles or Certificate of Incorporation or its By-Laws refrain from, (or comparable governing documents)i) incurring any Indebtedness; provided, however, the Company may amend its Articles of Incorporation to reflect a new par value of the Company Common Stock;
(ii) issue or sell, or authorize to issue or sell, any shares of its capital stock or any other securities (other than the issuance of a warrant to purchase Company Common Stock pursuant to a proposed financing agreement with Cisco Systems Capital Corp. (the "Cisco Financing Agreement") and issuances of Company Common Stock upon exercise of existing Company Options or Company Warrants), or issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure;
(iii) sell or pledge or agree to sell or pledge any stock or other equity interest owned by it in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or its other securities, or make any other payments to its Affiliates;
(v) enter into any contract or commitment with respect to capital expenditures in excess of $25,000;
(vi) acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person, or otherwise acquire any assets of any Person;
(vii) except with the prior written consent of the Acquisition Sub or to the extent required under applicable law, rule or regulation, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees (other than year-end bonuses not exceeding $20,000 in the aggregate and compensation increases for employees in the ordinary course of business and consistent with past practices) or grant any severance or termination pay other than pursuant to the letter agreement dated February 4, 2000 between the Company and Michxxx X. Xxxxxx xxxarding the termination of Mr. Xxxxxx'x xxxloyment or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(viii) mortgage, pledge or encumber any assets (other than as security under that certain Bridge Loan Facility Agreement by and between Parent and the Company dated as of December 22, 1999 (the "Bridge Loan Agreement") or the Cisco Financing Agreement) or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business, the Bridge Loan Agreement, and the Cisco Financing Agreement) or issue issuing any debt securities or assumeassuming, guarantee guaranteeing or endorse endorsing, or otherwise as an accommodation become responsible for for, the obligations of any Person; (iii) making any loans, advances, capital contributions or investments in any Person or, make any loan or other extension of credit;
(ix) make any investments or purchase or sell any material assets (other than purchases of network equipment in the ordinary course of business in a manner consistent with the Company's business plan previously disclosed to Acquisition Sub)
(x) enter into any capital lease or lease any of its assets;
(xi) make or rescind any tax election or settle or compromise any tax liability;
(xii) make any change in its method of accounting;
(xiii) except in the ordinary course of business consistent with past practice; or (iv) authorizing capital expenditures or purchases of fixed assets, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)in each case, other than in the paymentordinary course of business consistent with past practice;
(j) except as (x) as contemplated by this Agreement or (y) as required by applicable laws, discharge refrain from:
(i) granting any increases in the compensation of any of its current, former or satisfaction prospective directors, officers, consultants or employees inconsistent with past practice and outside of the ordinary course of business;
(Aii) amounts outstanding under paying or agreeing to pay to any current, former or prospective director, officer, consultant or key employee of the Bridge Loan AgreementCompany or its Subsidiaries, and (B) claimswhether past or present, liabilities any pension, retirement allowance or obligations reflected or reserved against in, other material employee benefit not required or contemplated by, by any of the consolidated financial statements contained existing Company Benefit Plans as in effect on the Company Financial Statementsdate hereof; or
(xiviii) agreeenter into any new, or amend any existing employee benefit plan employment, severance or termination agreement or arrangement with any current, former or prospective director, officer, consultant or key employee or current or prospective employee of any of the Company or its Subsidiaries;
(k) refrain from adopting a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or any other transaction that would preclude or be inconsistent in writing any material respect with, or otherwisehinder or delay in any material respect, the consummation of, the transactions contemplated hereby;
(l) refrain from settling any Action or Claim if the Company or any of its Subsidiaries would be required to pay in excess of twenty-five thousand dollars ($25,000) individually or in the aggregate or if such settlement would obligate the Company or any of its Subsidiaries to take any material action or restrict the Company, any of its Subsidiaries or the Business in any material respect from taking any action at or after the Closing;
(m) refrain from amending (unless any such amendment reduces the fees to be shared with the counterparty) or extending the term of any fee sharing agreement set forth in Section 5.11(a)(ii) of the Company Disclosure Letter; and
(n) refrain from authorizing any of, or committing or agreeing to take any of, the foregoing actions.
(c) Each Stockholder shall notify the Stockholders' Representative in writing within five Business Days, and the Stockholders' Representative shall promptly notify Acquisition Sub and the Company in writing upon receipt of any such notice from any Stockholder, of any material adverse change in the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries of which he has knowledge.
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