Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instance: (a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock of the Company or any of its subsidiaries, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, other than, in the case of either (A) or (B) above, pursuant to the exercise of Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of outstanding shares of capital stock of the Company or any of its subsidiaries; or (iii) split, combine, subdivide or reclassify any shares of capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of capital stock of the Company or any of its subsidiaries, or otherwise make any payments to stockholders in their capacity as such; (b) incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiaries; (c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect at the date of this Agreement; (d) make any acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregate; (e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, other than as required pursuant to the terms of agreements in effect on the date of this Agreement; (f) amend the Company Charter or the Company Bylaws; (g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party; (h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants; (i) change its fiscal year or make any material tax election, other than in the ordinary course of business; (j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company; (k) make or forgive any loans to any other person; (l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated; (m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes; (o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or (p) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 3 contracts
Samples: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
Conduct of Businesses Prior to the Effective Time. (a) Except as set forth in Section 5.1(a) of the Company Disclosure Schedule or as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (i) the termination of this Agreement and (ii) the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries Subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular regular, and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) practice; use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees; at its expense, maintain all its assets in good repair and condition, except to the extent of reasonable wear and use and damage by fire or other casualty; and comply in all material respects with all applicable laws and regulations of Governmental Entities. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 5.1(a) of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (x) the termination of this Agreement and (y) the Effective Time, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, without the prior written consent of Parent (which will not unreasonably be withheld, conditioned, or delayed) in each instance:
(ai) adopt or propose any change to the Company Charter or the Company By-laws;
(iii) merge or consolidate the Company or any of its Subsidiaries with any other Person;
(iii) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, optionoptions, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiariesSubsidiaries (including, without limitation, Company Stock Rights or Company Restricted Shares), or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, Subsidiaries outstanding on the date hereof, other than, in than the case issuance of either (A) or (B) above, Company Common Stock pursuant to the valid exercise of Options or Warrants Company Stock Rights, in each case which are outstanding as of the date hereof; of this Agreement;
(iiiv) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiaries; or Subsidiaries;
(iiiv) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock or otherwise make any payments to its stockholders in their capacity as such, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent;
(vi) enter into any agreement with respect to the formation of any joint venture, strategic partnership or alliance;
(vii) incur any Indebtedness (excluding any draw on an existing credit facility) or guarantee such Indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its subsidiariesSubsidiaries, or otherwise make any payments except for (A) Indebtedness incurred in the ordinary course of business not to stockholders exceed $100,000 in their capacity as suchthe aggregate, and (B) Indebtedness in replacement of existing Indebtedness on customary commercial terms;
(bviii) incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than in the Company or its subsidiaries;
(c) ordinary course of business consistent with past practice, sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets (i) individually, with a minimum value in excess of $100,000 to any individual, corporation or other entity Person other than a direct or indirect wholly owned subsidiarySubsidiary or (ii) collectively, with an aggregate minimum value in excess of $300,000 to any Person or Persons other than direct or indirect wholly owned Subsidiaries;
(ix) sell, lease, transfer, abandon, let lapse, exchange or swap, mortgage or otherwise encumber (including securitizations), or cancel, release or assign any indebtedness subject to any such person Lien or otherwise dispose of any material Company Intellectual Property Rights or any claims held by of its material properties or assets, including the capital stock of any such person, of its Subsidiaries except (iA) for sales, leases, licenses, abandonments, lapses, transfers, mortgages or encumbrances of obsolete assets, (B) pursuant to existing agreements in effect prior to the execution of this Agreement, (C) as may be required by applicable law or any Governmental Entity in order to permit or facilitate the consummation of the transactions contemplated hereby, or (D) non-exclusive licenses of Intellectual Property Rights granted in the ordinary course of business consistent with past practice, or (ii) pursuant practice in connection with the sales of products to contracts or agreements in effect at the date of this Agreementcustomers;
(dx) cancel, release or assign any Indebtedness owing to it in excess of $100,000 in the aggregate by or to any Person or Persons other than a direct or indirect wholly owned Subsidiary;
(xi) acquire assets outside of the ordinary course of business from any other Person or Persons other than a direct or indirect wholly owned Subsidiary with an aggregate value or purchase price in excess of $300,000;
(xii) make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary Subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(exiii) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit PlansPlan, collective bargaining agreement or employment, severance or similar agreement or arrangement, for or in respect of any stockholder, officer, director, employee, agent, consultant, or Affiliate other than (x) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (y) as required pursuant to the terms of an existing Company Benefit Plan;
(f) amend the Company Charter or the Company Bylaws;
(gxiv) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party; provided, however, that this clause (xiv) shall not prohibit the Company from consenting to a request from one or more of the parties thereto that it be permitted to make a Superior Proposal (as defined in Section 5.2(f) or a proposal that may reasonably be expected to lead to a Superior Proposal;
(hxv) change its method of make any changes with respect to accounting in effect at June 30, 2000policies or procedures, except as required by changes in GAAP or by law or except as concurred in by the Company's , based on the advice of its independent public accountantsauditors and after consultation with Parent, determines in good faith is advisable to conform to best accounting practices;
(ixvi) change its fiscal year settle any litigation or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee proceedings before or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee threatened to be canceled brought before a Governmental Entity for an amount in excess of $250,000 or terminated;
(m) enter into, terminate, fail which would be reasonably likely to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect;
(nxvii) fail to comply except as required by law, make any material Tax election or take any position on any material Tax Return filed on or after the date of this Agreement or adopt any material method of accounting therefor that in any such case is inconsistent with all applicable filingelections made, payment and withholding obligations under all applicable federal, state, local positions taken or foreign laws relating to Taxesmethods of accounting used in preparing or filing similar Tax Returns for prior periods;
(oxviii) payterminate, dischargecancel, settle let lapse, amend or satisfy modify any claimsinsurance coverage maintained by the Company or any Subsidiary with respect to any material assets which is not replaced by a comparable amount of insurance coverage;
(xix) make any material cash expenditure, liabilities unless to (x) invest in the Company’s or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than its Subsidiaries’ businesses consistent with the payment, discharge or satisfaction strategic plans of the foregoing Company or (y) satisfy obligations of the Company or its Subsidiaries incurred (i) in the ordinary course of business and consistent with past practice, or, if not or (ii) in connection with the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000transactions contemplated hereby; or
(pxx) make any commitment to take any of the actions prohibited by this Section 5.15.1(a).
(b) The Company shall provide to Parent, as soon as practicable, but in no event later than ten (10) days following the end of each calendar month, an accounting of the amount of cash and Indebtedness of the Company and its Subsidiaries on a consolidated basis, as of the end of such month, as calculated in accordance with GAAP applied in a manner consistent with the SEC Financial Statements.
Appears in 2 contracts
Samples: Merger Agreement (Lecroy Corp), Merger Agreement (Teledyne Technologies Inc)
Conduct of Businesses Prior to the Effective Time. (a) Except as set forth in Section 5.1(a) of the Company Disclosure Schedule or as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (i) the termination of this Agreement and (ii) the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries Subsidiaries to, in all material respectsuse commercially reasonable efforts to, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) practice; use all commercially reasonable efforts to maintain and preserve substantially intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees; and, at its expense, maintain its assets material to the business of the Company and its Subsidiaries in good repair and condition, consistent with past practice except to the extent of reasonable wear and use and damage by fire or other casualty. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 5.1(a) of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (x) the termination of this Agreement and (y) the Effective Time, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, without the prior written consent of Parent in each instance:instance (which consent shall not be unreasonably withheld, delayed or conditioned):
(ai) adopt or propose any change to the Company Certificate of Incorporation or the Company By-laws;
(iii) merge or consolidate the Company or any of its Subsidiaries with any other Person;
(iii) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, optionoptions, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiariesSubsidiaries (including, without limitation, Company Stock Rights or Company Restricted Shares), or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, Subsidiaries outstanding on the date hereof: provided, other thanhowever, in that the case of either (A) or (B) above, Company may issue Company Common Stock pursuant to the valid exercise of Options or Warrants Company Stock Rights that are outstanding as of the date hereof; of this Agreement;
(iiiv) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiaries; Subsidiaries, except for the acquisition of shares of Company Common Stock (A) from holders of Company Stock Rights in full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of Company Stock Rights or (iiiB) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares at their original issuance price or forfeiture of shares for no consideration, in each case in connection with any termination of services to the Company or any of its Subsidiaries;
(v) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock or otherwise make any payments to its shareholders in their capacity as such, other than (A) the quarterly $0.09 per share Company Common Stock dividend declared on August 13, 2014 to be paid on October 2, 2014 to shareholders of record as of September 3, 2014, and (B) dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent;
(vi) enter into any agreement with respect to the formation of any joint venture, strategic partnership or alliance;
(vii) incur any Indebtedness or guarantee such Indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its subsidiariesSubsidiaries, or otherwise make any payments except for (A) Indebtedness incurred in the ordinary course of business not to stockholders exceed $100,000 in their capacity as suchthe aggregate and (B) Indebtedness in replacement of existing Indebtedness on customary commercial terms;
(bviii) incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than in the Company ordinary course of business consistent with past practice or its subsidiaries;
(c) a disposition of obsolete inventory or assets, sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets (A) individually, with a minimum value in excess of $50,000 to any individual, corporation or other entity Person other than a direct or indirect wholly owned subsidiarySubsidiary or (B) collectively, with an aggregate minimum value in excess of $200,000 to any Person or Persons other than direct or indirect wholly owned Subsidiaries;
(ix) sell, lease, transfer, abandon, let lapse, exchange or swap, mortgage or otherwise encumber (including securitizations), or cancel, release or assign any indebtedness subject to any such person Lien (other than Permitted Liens) or otherwise dispose of any of its material properties or assets or any claims held by capital stock of any such person, of its Subsidiaries except (iA) for sales, leases, licenses, abandonments, lapses, transfers, mortgages or encumbrances of obsolete assets, (B) pursuant to existing agreements in effect prior to the execution of this Agreement, (C) as may be required by applicable law or any Governmental Entity in order to permit or facilitate the consummation of the transactions contemplated hereby, (D) sales of inventory in the ordinary course of business and (E) non-exclusive licenses of Intellectual Property Rights granted in the ordinary course of business consistent with past practice, or (ii) pursuant practice in connection with the sales of products to contracts or agreements in effect at the date of this Agreementcustomers;
(dx) cancel, release or assign any Indebtedness owing to it in excess of $250,000 in the aggregate by or to any Person or Persons other than a direct or indirect wholly owned Subsidiary;
(xi) acquire assets outside of the ordinary course of business from any other Person or Persons other than a direct or indirect wholly owned Subsidiary with an aggregate value or purchase price in excess of $100,000;
(xii) make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary Subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(exiii) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit PlansPlan, collective bargaining agreement or employment, severance or similar agreement or arrangement, for or in respect of any shareholder, officer, director, employee, agent, consultant, or Affiliate other than (A) as required pursuant to the terms of agreements in effect on the date of this Agreement, or (B) as required pursuant to the terms of an existing Company Benefit Plan;
(f) amend the Company Charter or the Company Bylaws;
(gxiv) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party; provided, however, that this clause (xiv) shall not prohibit the Company from consenting to a request from one or more of the parties thereto that such party or parties be permitted to make a Superior Proposal (as defined in Section 5.2(f)) or a bona fide written Takeover Proposal which the Board determines in good faith, after consultation with its outside financial advisor and outside legal counsel and after taking into account the legal, financial, financing and other aspects of such Takeover Proposal, is reasonably likely to result in a Superior Proposal;
(hxv) change its method of make any changes with respect to accounting in effect at June 30, 2000policies or procedures, except as required by changes in GAAP or by law or except as concurred in by the Company's , based on the advice of its independent public accountantsauditors, determines in good faith is advisable to conform to best accounting practices;
(ixvi) change its fiscal year or make any material tax election, other than Transaction Litigation, which is addressed in the ordinary course of business;
(j) assumeSection 5.12, guarantee settle any litigation or otherwise become liable other proceedings before or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee threatened to be canceled brought before a Governmental Entity for an amount in excess of $250,000 or terminated;
(m) enter into, terminate, fail which would be reasonably likely to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect;
(nxvii) fail to comply except as required by law, make any material Tax election or take any position on any material Tax Return filed on or after the date of this Agreement or adopt any material method of accounting therefor that in any such case is inconsistent with all applicable filingelections made, payment and withholding obligations under all applicable federal, state, local positions taken or foreign laws relating to Taxesmethods of accounting used in preparing or filing similar Tax Returns for prior periods;
(oxviii) payterminate, dischargecancel, settle let lapse, amend or satisfy modify any claims, liabilities insurance coverage maintained by the Company or objections any Subsidiary with respect to any material assets which is not replaced by a comparable amount of insurance coverage;
(absolute, accrued, asserted or unasserted, contingent or otherwise)xix) make any cash expenditure, other than to (A) invest in the payment, discharge or satisfaction Company’s businesses consistent with the strategic plans of the foregoing Company, (B) retire liabilities of the Company or its Subsidiaries in the ordinary course of business and consistent with past practice;
(xx) enter into or amend in any manner any contract, or, if not in agreement or commitment with any former or present director or officer of the ordinary course Company or any of business, the payment, discharge its Subsidiaries or satisfaction with any Affiliate of any of the foregoing that, individually and Persons or any other Person covered under Item 404 of Regulation S-K under the Securities Act;
(xxi) enter into any new line of business that will require a commitment of funds on other resources in an amount material to the aggregate, does not exceed $25,000operations of the Company; or
(pxxii) make any commitment to take any of the actions prohibited by this Section 5.15.1(a).
(b) The Company shall provide to Parent, as soon as practicable, but in no event later than ten (10) days following the end of each calendar month, an accounting of the amount of cash and Indebtedness of the Company and its Subsidiaries on a consolidated basis, as of the end of such month, as calculated in accordance with GAAP applied in a manner consistent with the SEC Financial Statements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Teledyne Technologies Inc), Merger Agreement (Bolt Technology Corp)
Conduct of Businesses Prior to the Effective Time. Except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries Subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock other than pursuant to the exercise of stock options outstanding as of the Company date hereof or any of its subsidiaries, the Interlab Antidilution Rights; or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, hereof other than, in the case of either (A) or (B) above, than pursuant to the exercise of Options stock options or Warrants warrants or conversion rights outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiariesstock; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, distribution in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such;
(b) except for (i) borrowings for working capital from time to time under its revolving credit facility pursuant to that certain Loan Agreement, dated as of June 29, 2006, by and among the Company, Virbac AH, Inc., PM Resources, Inc., St. JXX Laboratories, Inc., Francodex Laboratories, Inc. and Delmarva Laboratories, Inc, as Borrowers thereunder, the Lenders (as defined therein) and First Bank, as agent for itself and the other Lenders and (ii) indebtedness incurred to finance acquisitions or capital expenditures approved by the Board of Directors of the Company, incur any indebtedness for borrowed money or guarantee any such indebtedness in an amount of more than $100,000 individually or $500,000 in the aggregate at any point of time for all such loans and indebtedness, or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiariesSubsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose increase in any material manner the compensation (including compensation under any benefit plan) of any of its properties directors, officers or assets to any individual, corporation or other entity employees other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) as required pursuant to the terms of agreements or plan in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or officers of the Company made in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect at the date of this Agreement;
(d) make any acquisition amend its Certificate of Incorporation, By-laws or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregatesimilar governing documents;
(e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend cancel or terminate any material policy of casualty or business interruption insurance naming the Company Benefit Plans, other than or any Subsidiary as required pursuant to the terms of agreements in effect on the date of this Agreementa beneficiary or loss payee;
(f) amend make any change in accounting methods, principles or practices materially affecting the Company Charter reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP, the Internal Revenue Code of 1986, as amended (the “Code”) or the Company Bylaws;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30treasury regulations under the Code, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make or change any material tax election, other than in the ordinary course of business;
(j) assume, guarantee election or otherwise become liable settle or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make compromise any material changes in the type tax liability or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000refund claim; or
(pg) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (i) the termination of this Agreement and (ii) the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries Subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular regular, and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) practice; use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees; at its expense, maintain all its assets in good repair and condition, except to the extent of reasonable wear and use and damage by fire or other casualty; and comply in all material respects with all applicable laws and regulations of Governmental Entities. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulationregulation (including the rules of any applicable securities exchange), during the period from the date of this Agreement to the earlier of (x) the termination of this Agreement and (y) the Effective Time, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, without the prior written consent of Parent in each instance:
(a) adopt or propose any change to the Company Charter or the Company By-laws;
(b) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company that are not obligors or guarantors of third party indebtedness;
(c) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, optionoptions, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiariesSubsidiaries (including Company Stock Options), or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, Subsidiaries outstanding on the date hereof, other than, in than the case issuance of either (A) or (B) above, Company Common Stock pursuant to the exercise of Options or Warrants Company Stock Options, in each case which are outstanding as of the date hereofof this Agreement; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiariesSubsidiaries; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to stockholders its shareholders in their capacity as such, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent;
(bd) incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions toof another Person, or investments in, issue or sell any debt securities or warrants or other person other than rights to acquire any debt security of the Company or any of its subsidiariesSubsidiaries, except for (A) indebtedness for borrowed money incurred in the ordinary course of business not to exceed $100,000 in the aggregate, and (B) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on customary commercial terms;
(ce) other than in the ordinary course of business consistent with past practice, sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets (i) individually, with a minimum value in excess of $10,000 to any individual, corporation or other entity Person other than a direct or indirect wholly owned subsidiarySubsidiary or (ii) collectively, with an aggregate minimum value in excess of $40,000 to any Person or Persons other than direct or indirect wholly owned Subsidiaries;
(f) cancel, release or assign any indebtedness owing to it in excess of $100,000 in the aggregate by or to any such person Person or any claims held by any such person, except Persons other than a direct or indirect wholly owned Subsidiary;
(ig) in acquire assets outside of the ordinary course of business consistent from any other Person or Persons other than a direct or indirect wholly owned Subsidiary with past practice, an aggregate value or (ii) pursuant to contracts or agreements purchase price in effect at the date excess of this Agreement$20,000;
(dh) make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary Subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(ei) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, for or in respect of, any shareholder, officer, director, other employee, agent, consultant, or Affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (ii) as required pursuant to the terms of an existing Company Benefit Plan;
(f) amend the Company Charter or the Company Bylaws;
(gj) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party; provided, however, that this clause (j) shall not prohibit the Company from consenting to a request from one or more of the parties thereto that it be permitted to make a Superior Proposal (as defined in Section 5.2(f)) or a proposal that may reasonably be expected to lead to a Superior Proposal;
(hk) change its method of make any changes with respect to accounting in effect at June 30, 2000policies or procedures, except as required by changes in GAAP or by law or except as concurred in by the Company's , based on the advice of its independent public accountants;
(i) change its fiscal year or make any material tax electionauditors and after consultation with Parent, other than determines in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans good faith is advisable to any other personconform to best accounting practices;
(l) make settle any material changes in the type litigation or amount of their insurance coverage other proceedings before or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee threatened to be canceled brought before a Governmental Entity for an amount in excess of $20,000 or terminated;
(m) enter into, terminate, fail which would be reasonably likely to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect;
(nm) fail to comply except as required by law, make any material Tax election or take any position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with all applicable filingelections made, payment and withholding obligations under all applicable federal, state, local positions taken or foreign laws relating to Taxesmethods used in preparing or filing similar Tax Returns in prior periods;
(on) payterminate, dischargecancel, settle amend or satisfy modify any claims, liabilities insurance coverage maintained by the Company or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction any Subsidiary with respect to any material assets which is not replaced by a comparable amount of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000insurance coverage; or
(po) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Benthos Inc)
Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by provided in this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to until the Effective Time, unless Parent otherwise agrees in writingClosing Date or the earlier termination of this Agreement, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records operations in the usual, regular and ordinary course of business consistent with past practice custom and practice, including with respect to quantity and frequency (provided“Ordinary Course of Business”), -------- that, and the Company may take into account shall use its financial condition and the need reasonable best efforts to preserve assets) and (ii) use all reasonable efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it and retain organization, to keep available the services of its present officers and key employeesemployees and to preserve the present commercial relationships with key Persons with whom it does business. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by any other provision of this Agreement, or as required by applicable law, rule or regulation, during the period from between the date of this Agreement to and the Effective TimeTime or the earlier termination of this Agreement, the Company shall notnot (unless in each case as required by applicable laws, and shall not permit rules, orders, judgments, decrees, ordinances or regulations applicable to the Company) directly or indirectly, take or agree to take any of its subsidiaries to, the following actions without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition effect any change in its certificate of incorporation or pledge or other encumbrance of bylaws;
(Ab) grant any additional shares of capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock of the Company or any of its subsidiaries, or any rightsoptions, warrants, option, calls, commitments or any other agreements of any character rights to purchase or acquire obtain any shares of its capital stock or any securities or rights convertible intoissue, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, other than, in the case of either (A) or (B) above, pursuant to the exercise of Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of outstanding shares of capital stock of the Company or any of its subsidiaries; or (iii) split, combine, subdivide or reclassify any shares of capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of capital stock of the Company or any of its subsidiaries, or otherwise make any payments to stockholders in their capacity as such;
(b) incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties capital stock;
(c) declare, set aside or pay any dividend or distribution with respect to the Company Capital Stock, or redeem, repurchase, or otherwise acquire any shares of Company Capital Stock;
(d) issue any note, bond, or other debt security or create, incur, assume, or guarantee any indebtedness for borrowed money or capitalized lease obligation outside the Ordinary Course of Business;
(e) impose any lien upon any of its assets outside the Ordinary Course of Business or secure indebtedness or obligations not otherwise secured as of the date hereof;
(f) make any capital investment in, make any loan to, or acquire the securities or assets of any other Person;
(g) except as may be required by contractual commitments or corporate policies with respect to any individual, corporation severance or other entity other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) termination pay in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect at existence on the date of this Agreement;
: (d) make any acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(ei) increase in any manner the compensation of any of or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices in salaries or wages of employees (but not executive officers) of the Company which are not across-the-board increases); (ii) grant any rights to severance or termination pay to, or enter intointo any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or terminate other plan, agreement, trust, fund, policy or arrangement for the benefit of any Company Benefit Plansdirector, other than as officer or employee of the Company, except to the extent required pursuant to by applicable laws, rules, orders, judgments, decrees, ordinances or regulations or the terms of agreements a collective bargaining agreement in effect existence on the date of this Agreement; or (iii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company benefit plan;
(fh) amend (i) prepay any indebtedness for borrowed money, (ii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the Company Charter Ordinary Course of Business and in accordance with their terms, (iii) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the Company Bylawsdates when the same would have been collected in the Ordinary Course of Business, or (iv) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the Ordinary Course of Business;
(gi) waive waive, release, assign, settle or fail compromise any claims, or any litigation or arbitration;
(j) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(k) make or change any election in respect of Taxes, adopt or change any material accounting method in respect of Taxes, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settle or compromise any claim, notice, audit report or assessment in respect of Taxes, or consent to enforce any provision extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(l) modify, amend or terminate, or waive, release or assign any rights or claims with respect to any confidentiality or standstill agreement to which it the Company is a party;
(hm) change its method write up, write down or write off the book value of accounting in effect at June 30any assets, 2000individually, except as required by changes for depreciation and amortization and impairment charges in accordance with GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectconsistently applied;
(n) fail take any action that is intended or would reasonably be expected to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local result in any of the conditions set forth in Section 6.1 or foreign laws relating to TaxesSection 6.2 not being satisfied;
(o) pay, discharge, settle make or satisfy authorize any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction capital expenditure outside of the foregoing in the ordinary course Ordinary Course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; orBusiness;
(p) make hire full time or temporary employees outside of the Ordinary Course of Business;
(q) terminate, cancel or agree to any commitment material change in any material contract other than in the Ordinary Course of Business; or (r) commit to take do any of the actions prohibited by this Section 5.1foregoing.
Appears in 1 contract
Samples: Merger Agreement (Wca Waste Corp)
Conduct of Businesses Prior to the Effective Time. Except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, other than, in the case of either (A) or (B) above, than pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiariesstock; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such, other than the payment of the cash dividend of $.06 per share of Company Common Stock declared on June 14, 2000 payable on July 5, 2000 to holders of record on June 25, 2000;
(b) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a minimum value in excess of $10 million to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness in excess of $1 million to any such person or any claims held by any such person, in each case that is material to the Company and its subsidiaries, taken as a whole, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 10 million in any one transaction or $100,000 20 million in the aggregate;
(e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plansemployment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or officers of the Company made in the ordinary course of business and in a manner consistent with past practice;
(f) amend the Company Charter its articles of incorporation, bylaws or the Company Bylawssimilar governing documents;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or
(ph) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instance:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock of the Company or any of its subsidiaries, subsidiaries outstanding on the date hereof, other than, in the case of either (A) or (B) above, pursuant to the exercise of Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of the outstanding shares of capital stock of the Company or any of its subsidiaries; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such, other than the Company’s ordinary course quarterly dividends to holders of Company Common Stock in a per share amount no greater than the Company’s most recently declared dividend in the amount of $0.42 per share that it declared on December 1, 2010 to holders of Company Common Stock at the close of business on February 3, 2011;
(b) engage in any borrowing transaction, or, other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its direct or indirect wholly owned subsidiaries, except pursuant to the existing revolving credit facility used in the Company’s CORT furniture rental business;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiarysubsidiary of the Company, or cancel, release or assign any indebtedness to any such person any indebtedness or any claims held by any such personrelated thereto, except (i) except, in each case, in the ordinary course of business consistent with past practice; provided in no event may the Company sell, transfer, mortgage, encumber or (ii) pursuant to contracts or agreements otherwise dispose of any of the securities in effect at the date of this AgreementPortfolio;
(d) make any acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or or, other than in the ordinary course of business, purchases of any property or assets of any other individual, corporation or other entity other than a direct or indirect wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregateCompany;
(e) increase in make any manner the material modifications to any employee benefit plans, employment or compensation of any of its directorsarrangements, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, other than except as required pursuant to the terms of agreements in effect on the date of this Agreementby applicable law;
(f) amend the Company Charter or the Company Bylaws;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30charter, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renewbylaws, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000similar organizational documents; or
(pg) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as ------------------------------------------------- set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, other than, in the case of either (A) or (B) above, than pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiariesstock; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such;
(b) , other than the payment of the cash dividend of $.06 per share of Company Common Stock declared on June 14, 2000 payable on July 5, 2000 to holders of record on June 25, 2000; other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiaries;
(c) ; sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a minimum value in excess of $10 million to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness in excess of $1 million to any such person or any claims held by any such person, in each case that is material to the Company and its subsidiaries, taken as a whole, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) ; make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 10 million in any one transaction or $100,000 20 million in the aggregate;
(e) ; increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plansemployment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement;
, and (fii) amend increases in salaries, wages and benefits of employees who are not directors or officers of the Company Charter made in the ordinary course of business and in a manner consistent with past practice; amend its articles of incorporation, bylaws or the Company Bylaws;
(g) similar governing documents; waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year ; or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or
(p) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as (x) set forth in Section 6.1 of the Company Disclosure Schedule, (y) expressly contemplated or permitted by this Agreement, or as (z) required by applicable law, rule or regulationLaw, during the period from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries each of the Company Subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in all material respects in the usual, regular and ordinary course of business consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as (x) set forth in Section 5.1 6.1 of the Company Disclosure Schedule, as (y) expressly contemplated or permitted by this Agreement, or as (z) required by applicable law, rule or regulationLaw, during the period from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, the Company shall not, and shall not permit any of its subsidiaries the Company Subsidiaries to, without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, grant, disposition or pledge or other encumbrance of of, (Ax) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, optionoptions, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock stock, other than upon exercise of Company Options and to fund the Company or any Company’s matching contribution to the Company’s 401(k) plan in the ordinary course of its subsidiariesbusiness, or (By) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereofof this Agreement, other than, in the case of either (A) or (B) above, pursuant to the exercise of Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiaries; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, distribution in respect of any shares of capital stock of the Company or any of its subsidiariesShares, or otherwise make any payments to stockholders in their capacity as such, other than dividends declared or paid by any Company Subsidiary to any other Company Subsidiary or to the Company;
(b) incur other than borrowings under the Company’s existing letter of credit and line of credit facilities and guaranties of Real Property Leases in the ordinary course of business, create, incur, assume any indebtedness for borrowed money money, issue any note, bond or other debt security, or guarantee any indebtedness, in such indebtedness cases in excess of $2,500,000 in the aggregate or make any loans, advances (other than advances to employees of the Company or any Company Subsidiary in the ordinary course of business) or capital contributions to, or investments in, to any other person Person other than to any of the Company or its subsidiariesand the Company Subsidiaries;
(c) sell, transfer, license, mortgage, encumber or otherwise dispose of any of its properties or assets with a value in excess of $3,000,000 to any individual, corporation or other entity Person other than the Company or a direct or indirect wholly wholly-owned subsidiaryCompany Subsidiary, or cancel, release or assign any indebtedness in excess of $3,000,000 to any such person or any claims held by any such personPerson, except (i) pursuant to contracts and agreements in force at the date of this Agreement or renewals of any such contract or agreement, (ii) pursuant to plans disclosed in the Company Disclosure Schedule, (iii) the disposition of property identified as “excess property” on Schedule 6.1 or (iv) sales of inventory in the ordinary course of business;
(d) grant a license (whether written or oral) to, or any other rights with respect to, any material Company Intellectual Property to any Person;
(e) enter into any Contract containing any non-competition covenant (other than Real Property Leases in the ordinary course of business);
(f) make any material acquisition or investment (other than purchases of inventory, supplies and other assets in the ordinary course of business and investments made in accordance with the Company’s cash management policies in the ordinary course of business consistent with past practice), or (ii) pursuant to contracts or agreements in effect at the date of this Agreement;
(d) make any acquisition or investment in a business either whether by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases or exclusive licenses of any property or assets assets, of or in any other individual, corporation or other entity Person other than a wholly wholly-owned subsidiary thereofCompany Subsidiary or to the extent contemplated by the Company’s capital expenditure budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the date of this Agreement, or purchase for the following fiscal year of the Company, if and to the extent applicable;
(g) (i) increase the rate or terms of compensation payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees, (ii) enter into any employment or severance agreement to purchase equipmentwith or grant or increase the rate or terms of any bonus, materialspension, suppliesseverance or other employee benefit plan, policy, agreement or services arrangement with, for or in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(e) increase in any manner the compensation respect of any of its their respective directors, officers or employees or enter into, make any severance or termination payment to any such Person or (iii) establish, amend adopt, enter into or terminate any Company collective bargaining agreement or Benefit PlansPlan or any employee benefit plan, policy or arrangement that, if it were in effect on the date of this Agreement, would be a Benefit Plan, or take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding of any of the foregoing, except in any such case for grants, increases or other than as actions (x) required pursuant to the terms of plans or agreements in effect on the date of this Agreement;
, (fy) amend the Company Charter or the Company Bylaws;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing occurring in the ordinary course of business consistent with past practicepractice or (z) required by Law; provided, orhowever, if not that notwithstanding this Section 6.1(g) or anything else to the contrary in this Agreement, the Company shall be permitted to enter into employment agreements with the persons set forth on Section 6.1(g) of the Company Disclosure Schedule for the purpose of assuring continuity of management on such terms as the Company and Parent shall mutually agree on or prior to the Effective Date (in which case all applicable Sections of the Company Disclosure Schedule shall be deemed amended as of the date of this Agreement to reflect disclosure of, and the Company’s entry into, such employment agreements);
(h) amend the Company Certificate or Company By-Laws;
(i) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) except as required by applicable Law, make or change any election in respect of Taxes or adopt or change any material accounting method in respect of Taxes, (ii) enter into any tax allocation agreement, tax sharing agreement, closing agreement, or (iii) settle or compromise any claim, notice, audit report or assessment in respect of Taxes individually in excess of $500,000 or in the ordinary course aggregate in excess of business$2,000,000;
(k) write up, write down or write off the payment, discharge or satisfaction book value of the foregoing thatany assets, individually and or in the aggregate, does not exceed for the Company and the Subsidiaries taken as a whole, in excess of $25,000; or1,000,000, except in accordance with GAAP consistently applied;
(pl) make any commitment subject to Section 6.2(c), take any action to exempt any Person (other than Parent or Merger Sub) or any action taken by such Person from, or make such Person or action not subject to, (i) the provisions of Section 203 of the actions prohibited DGCL, if applicable, or (ii) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares;
(m) implement any layoff of employees that would implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended;
(n) settle any litigation that is not covered by this Section 5.1.insurance for an amount in excess of $1,000,000 per litigation;
Appears in 1 contract
Samples: Merger Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instance:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock or options of the Company or any of its subsidiaries, subsidiaries outstanding on the date hereof, other than, in than the case issuance of either (A) or (B) above, shares of Company Common Stock pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date hereof; (ii) accelerate the vesting of any Company Stock Options; (iii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of the outstanding shares of capital stock of the Company or any of its subsidiaries; or (iiiiv) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such;
(b) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its direct or indirect wholly owned subsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a minimum value in excess of $100,000 to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiarysubsidiary of the Company, or cancel, release or assign any indebtedness to any such person any indebtedness in excess of $100,000 or any claims held by any such personrelated thereto, in each case that is material to the Company and its subsidiaries, taken as a whole, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) increase its inventory as computed on a GAAP basis, but excluding finished goods inventory being serviced under the Floor Plan Servicing Agreement dated June 2, 2009, between the Company and Triad Financial Services, Inc., by more than $500,000 over the amount stated on the Company's condensed consolidated balance sheet (unaudited) as of March 28, 2009;
(e) increase its accounts receivable, net of allowance for losses, by more than $500,000 over the amount stated on the Company's condensed consolidated balance sheet (unaudited) as of March 28, 2009;
(f) employ or engage any employee, agent or consultant at a general manager or officer level of responsibility;
(g) other than in the ordinary course of business consistent with past practice, make any acquisition or investment having a value in excess of $100,000 in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets in excess of $100,000 of any other individual, corporation or other entity other than a direct or indirect wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregateCompany;
(eh) settle or compromise for $50,000 or more any claim (including arbitration) or litigation, or related series of claims or actions;
(i) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or executive officers of the Company made in the ordinary course of business and in a manner consistent with past practice;
(fj) amend the Company Charter its charter, bylaws, or the Company Bylawssimilar organizational documents;
(gk) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or
(pl) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instance:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock or options of the Company or any of its subsidiaries, subsidiaries outstanding on the date hereof, other than, in than the case issuance of either (A) or (B) above, shares of Company Common Stock pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date hereof; (ii) accelerate the vesting of any Company Stock Options; (iii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of the outstanding shares of capital stock of the Company or any of its subsidiaries; or (iiiiv) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such;
(b) engage in any borrowing or securitization transaction, or, other than in the ordinary course of business consistent with past practice, otherwise incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its direct or indirect wholly owned subsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a minimum value in excess of $10 million to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiarysubsidiary of the Company, or cancel, release or assign any indebtedness to any such person any indebtedness in excess of $1 million or any claims held by any such personrelated thereto, in each case that is material to the Company and its subsidiaries, taken as a whole, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) other than in the ordinary course of business consistent with past practice, make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a direct or indirect wholly owned subsidiary thereof, or purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in the aggregateCompany;
(e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or executive officers of the Company made in the ordinary course of business and in a manner consistent with past practice;
(f) amend the Company Charter its charter, bylaws, or the Company Bylawssimilar organizational documents;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or
(ph) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Clayton Homes Inc)
Conduct of Businesses Prior to the Effective Time. Except as set forth in Section 6.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent Investor otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 6.1 of the Company Disclosure Schedule, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instanceInvestor:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereof, other than, in the case of either (A) or (B) above, than pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiariesstock; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, except for quarterly cash dividends in the amount of $0.05 per share, consistent with past practice, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such;
(b) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its subsidiaries;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole, to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such personperson that is material to the Company and its subsidiaries, taken as a whole, except in each case (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned subsidiary thereof, or or, other than in the ordinary course of business consistent with past practice, purchase or enter into any agreement to purchase equipment, materials, supplies, or services in excess of $25,000 in any one transaction or $100,000 in for an amount that is material to the aggregateCompany and its subsidiaries, taken as a whole;
(e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plansemployment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or officers of the Company made in the ordinary course of business and in a manner consistent with past practice;
(f) amend the Company Charter Articles or the Company BylawsBylaws or similar governing documents;
(g) change any material accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules or regulations of the SEC promulgated following the date hereof;
(h) take any action that would, or is reasonably likely to, result in any of its representations and warranties in this Agreement becoming untrue, or in any of the conditions to the Merger set forth in Article 8 not being satisfied;
(i) except in the ordinary course of business and consistent with past practice, make any tax election or settle or compromise any federal, state, local or foreign income tax liability;
(j) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000; or
(pk) make any commitment to take any of the actions prohibited by this Section 5.16.1.
Appears in 1 contract
Conduct of Businesses Prior to the Effective Time. Except as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in the usual, regular and ordinary course consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all reasonable efforts to maintain and preserve intact its business organization and the goodwill good will of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Company Disclosure ScheduleLetter, as expressly contemplated or permitted by this Agreement, or as required by applicable law, rule or regulation, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its subsidiaries to, without the prior written consent of Parent in each instance:instance (such consent, solely in the case of clauses (b), (c) and (d) below, not to be unreasonably withheld or delayed):
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, option, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its subsidiaries, or (B) any other securities in respect of, in lieu of, or in substitution for, any shares of capital stock or options of the Company or any of its subsidiaries, subsidiaries outstanding on the date hereof, other than, in the case of either clauses (A) or and (B) above), the issuance of shares of Company Common Stock pursuant to the exercise of Company Stock Options or Warrants rights under the Company’s Employee Stock Purchase Program (the “ESPP”) or the Company’s Discounted Stock Purchase Program (the “DSPP”) or the vesting of Company RSUs, in each case outstanding as of the date hereof, the issuance of Company Stock Options (and the issuance of shares of Company Common Stock pursuant to the exercise of such Company Stock Options) pursuant to the exercise of Company Stock Options outstanding as of the date hereof with a “reload” feature, the issuance of rights under the ESPP and the DSPP in the ordinary course of business consistent with past practice (and the issuance of shares of Company Common Stock pursuant to the exercise of such rights) and the issuance of shares of Company Common Stock pursuant to the Company’s Investment and Retirement Plan; (ii) accelerate the vesting of any Company Stock Options, Company RSUs or Company Restricted Shares, except as may be required pursuant to the terms of such Company Stock Options, Company RSUs or Company Restricted Shares as in effect on the date hereof; (iii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of the outstanding shares of capital stock of the Company or any of its subsidiariessubsidiaries (other than pursuant to the Company Benefit Plans); or (iiiiv) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, in respect of any shares of its capital stock of the Company or any of its subsidiaries, or otherwise make any payments to its stockholders in their capacity as such, other than the Company’s ordinary course quarterly dividends to holders of Company Common Stock in a per share amount no greater than the Company’s most recently declared dividend; provided, however, that the Company may accelerate its usual quarterly dividend record and payment dates with respect to the first quarter of 2010 if necessary to ensure that the portion of the per share dividend for such quarter equal to the First Quarter Dividend Payment is paid on the Closing Date (with the “First Quarter Dividend Payment” defined as the product of (1) the number of calendar days between (and including) December 15, 2009 and the Closing Date, and (2) $0.0044);
(b) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other person other than the Company or its direct or indirect wholly owned subsidiaries, except pursuant to contracts or agreements in force at the date of this Agreement;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a minimum value in excess of $100,000,000 to any individual, corporation or other entity other than a direct or indirect wholly owned subsidiarysubsidiary of the Company, or cancel, release or assign any indebtedness to any such person any indebtedness in excess of $100,000,000 or any claims held by any such personrelated thereto, in each case that is material to the Company and its subsidiaries, taken as a whole, except (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to contracts or agreements in effect force at the date of this Agreement;
(d) other than in the ordinary course of business consistent with past practice, make any material acquisition or investment in a business either by purchase of stock or securities, merger or consolidation, contributions to capital, loans, advances, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a direct or indirect wholly owned subsidiary thereofof the Company, except pursuant to contracts or purchase or enter into any agreement to purchase equipment, materials, supplies, or services agreements in excess force at the date of $25,000 in any one transaction or $100,000 in the aggregatethis Agreement;
(e) increase in any manner the compensation of any of its directors, officers or employees or enter into, establish, amend or terminate any Company Benefit Plans, for or in respect of, any stockholder, officer, director, other employee, agent, consultant or affiliate other than (i) as required pursuant to the terms of agreements or Company Benefit Plans, in each case in effect on the date of this Agreement, and (ii) increases in salaries, wages and benefits of employees who are not directors or executive officers of the Company made in the ordinary course of business and in a manner consistent with past practice;
(f) amend the Company Charter or the Company Bylaws;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30charter, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renewbylaws, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $25,000similar organizational documents; or
(pg) make any commitment to take any of the actions prohibited by this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Burlington Northern Santa Fe Corp)
Conduct of Businesses Prior to the Effective Time. Except as (x) set forth in Section 6.1 of the Company Disclosure Schedule, (y) expressly contemplated or permitted by this Agreement, or as (z) required by applicable law, rule or regulationLaw, during the period from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, unless Parent otherwise agrees in writing, the Company shall, and shall cause its subsidiaries each of the Company Subsidiaries to, in all material respects, (i) conduct its business and maintain its books of account and records in all material respects in the usual, regular and ordinary course of business consistent with past practice (provided, -------- that, the Company may take into account its financial condition and the need to preserve assets) and (ii) use all its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees. Without limiting the generality of the foregoing, and except as (x) set forth in Section 5.1 6.1 of the Company Disclosure Schedule, as (y) expressly contemplated or permitted by this Agreement, or as (z) required by applicable law, rule or regulationLaw, during the period from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, the Company shall not, and shall not permit any of its subsidiaries the Company Subsidiaries to, without the prior written consent of Parent in each instanceParent:
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, grant, disposition or pledge or other encumbrance of of, (Ax) any additional shares of its capital stock of the Company or any of its subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock of the Company or any of its subsidiariesstock, or any rights, warrants, optionoptions, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock stock, other than upon exercise of Company Options and to fund the Company or any Company’s matching contribution to the Company’s 401(k) plan in the ordinary course of its subsidiariesbusiness, or (By) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock of the Company or any of its subsidiaries, outstanding on the date hereofof this Agreement, other than, in the case of either (A) or (B) above, pursuant to the exercise of Options or Warrants outstanding as of the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock of the Company or any of its subsidiaries; or (iii) split, combine, subdivide or reclassify any shares of its capital stock of the Company or any of its subsidiaries, or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution, distribution in respect of any shares of capital stock of the Company or any of its subsidiariesShares, or otherwise make any payments to stockholders in their capacity as such, other than dividends declared or paid by any Company Subsidiary to any other Company Subsidiary or to the Company;
(b) incur other than borrowings under the Company’s existing letter of credit and line of credit facilities and guaranties of Real Property Leases in the ordinary course of business, create, incur, assume any indebtedness for borrowed money money, issue any note, bond or other debt security, or guarantee any indebtedness, in such indebtedness cases in excess of $2,500,000 in the aggregate or make any loans, advances (other than advances to employees of the Company or any Company Subsidiary in the ordinary course of business) or capital contributions to, or investments in, to any other person Person other than to any of the Company or its subsidiariesand the Company Subsidiaries;
(c) sell, transfer, license, mortgage, encumber or otherwise dispose of any of its properties or assets with a value in excess of $3,000,000 to any individual, corporation or other entity Person other than the Company or a direct or indirect wholly wholly-owned subsidiaryCompany Subsidiary, or cancel, release or assign any indebtedness in excess of $3,000,000 to any such person or any claims held by any such personPerson, except (i) pursuant to contracts and agreements in force at the date of this Agreement or renewals of any such contract or agreement, (ii) pursuant to plans disclosed in the Company Disclosure Schedule, (iii) the disposition of property identified as “excess property” on Schedule 6.1 or (iv) sales of inventory in the ordinary course of business;
(d) grant a license (whether written or oral) to, or any other rights with respect to, any material Company Intellectual Property to any Person;
(e) enter into any Contract containing any non-competition covenant (other than Real Property Leases in the ordinary course of business);
(f) make any material acquisition or investment (other than purchases of inventory, supplies and other assets in the ordinary course of business and investments made in accordance with the Company’s cash management policies in the ordinary course of business consistent with past practice), or (ii) pursuant to contracts or agreements in effect at the date of this Agreement;
(d) make any acquisition or investment in a business either whether by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases or exclusive licenses of any property or assets assets, of or in any other individual, corporation or other entity Person other than a wholly wholly-owned subsidiary thereofCompany Subsidiary or to the extent contemplated by the Company’s capital expenditure budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the date of this Agreement, or purchase for the following fiscal year of the Company, if and to the extent applicable;
(g) (i) increase the rate or terms of compensation payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees, (ii) enter into any employment or severance agreement to purchase equipmentwith or grant or increase the rate or terms of any bonus, materialspension, suppliesseverance or other employee benefit plan, policy, agreement or services arrangement with, for or in excess of $25,000 in any one transaction or $100,000 in the aggregate;
(e) increase in any manner the compensation respect of any of its their respective directors, officers or employees or enter into, make any severance or termination payment to any such Person or (iii) establish, amend adopt, enter into or terminate any Company collective bargaining agreement or Benefit PlansPlan or any employee benefit plan, policy or arrangement that, if it were in effect on the date of this Agreement, would be a Benefit Plan, or take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding of any of the foregoing, except in any such case for grants, increases or other than as actions (x) required pursuant to the terms of plans or agreements in effect on the date of this Agreement;
, (fy) amend the Company Charter or the Company Bylaws;
(g) waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party;
(h) change its method of accounting in effect at June 30, 2000, except as required by changes in GAAP as concurred in by the Company's independent public accountants;
(i) change its fiscal year or make any material tax election, other than in the ordinary course of business;
(j) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except subsidiaries of the Company;
(k) make or forgive any loans to any other person;
(l) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(m) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(n) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes;
(o) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing occurring in the ordinary course of business consistent with past practicepractice or (z) required by Law; provided, orhowever, that notwithstanding this Section 6.1(g) or anything else to the contrary in this Agreement, the Company shall be permitted to enter into employment agreements with the persons set forth on Section 6.1(g) of the Company Disclosure Schedule for the purpose of assuring continuity of management on such terms as the Company and Parent shall mutually agree on or prior to the Effective Date (in which case all applicable Sections of the Company Disclosure Schedule shall be deemed amended as of the date of this Agreement to reflect disclosure of, and the Company's entry into, such employment agreements);
(h) amend the Company Certificate or Company By-Laws;
(i) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) except as required by applicable Law, make or change any election in respect of Taxes or adopt or change any material accounting method in respect of Taxes, (ii) enter into any tax allocation agreement, tax sharing agreement, closing agreement, or (iii) settle or compromise any claim, notice, audit report or assessment in respect of Taxes individually in excess of $500,000 or in the aggregate in excess of $2,000,000;
(k) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Subsidiaries taken as a whole, in excess of $1,000,000, except in accordance with GAAP consistently applied;
(l) subject to Section 6.2(c), take any action to exempt any Person (other than Parent or Merger Sub) or any action taken by such Person from, or make such Person or action not subject to, (i) the provisions of Section 203 of the DGCL, if applicable, or (ii) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares;
(m) implement any layoff of employees that would implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended;
(n) settle any litigation that is not covered by insurance for an amount in excess of $1,000,000 per litigation;
(o) (x) amend, modify in any material respect or terminate (other than in accordance with its terms) any Contract pursuant to which the Company or any Company Subsidiary has expended in Fiscal Year 2005, or expects to expend in Fiscal Year 2006, in excess of $1,500,000 or (y) enter into any Contract under which the Company or any of the Company Subsidiaries expects to expend in excess of $1,500,000 during Fiscal Year 2006 (other than (i) purchases of inventory, supplies and assets in the ordinary course of business, (ii) to the paymentextent contemplated by the Company's budget for Fiscal Year 2006 (as most recently updated if applicable), discharge or satisfaction a copy of which has been provided to Parent prior to the foregoing thatdate of this Agreement, individually and in (iii) with respect to the aggregateother subsections of this Section 6.1, does Contracts not exceed $25,000prohibited thereby); or
(p) make any commitment to take any of the actions prohibited by this Section 5.16.1.
Appears in 1 contract
Samples: Merger Agreement (Burlington Coat Factory Warehouse Corp)
