Conduct of Company’s Business. From the date of this Agreement through the Closing, the Company (a) shall maintain its existence and carry on its business in the Ordinary Course and, to the extent consistent therewith, (b) shall use commercially reasonable efforts to preserve its business relationships to the end that its goodwill and ongoing business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d). Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Effective Time, except as otherwise contemplated by this Agreement or as set forth on Schedule 4.7 of the Company Letter or is necessary to preserve the Company’s REIT status, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (i) adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents; (ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP); (iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms; (iv) (x) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than dividends and other distributions by Subsidiaries of the Company to the Company or its wholly-owned Subsidiaries, (y) other than in the case of any wholly-owned Subsidiary of the Company, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its non-wholly-owned Subsidiaries of the Company or any other debt or equity securities of any of them or any rights, warrants or options to acquire any such shares or other securities; (v) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets or properties of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or (y) any assets or properties that are, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole; (vi) sell, lease (other than the subleasing of excess office space), license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assets, other than in the Ordinary Course or in the Additional Transactions; (vii) other than in the Ordinary Course, incur or assume any indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, or enter into any arrangement having the economic effect of any of the foregoing; (viii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any wholly-owned Subsidiary of the Company other than as contemplated in the Additional Transactions; (ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes); (x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes; (xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; (xii) take any action that would reasonably be expected to result in any of the conditions set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as contemplated by this Agreement; or (xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan; (xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000; (xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates); (xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company; (xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (B) other than in the Ordinary Course, enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been a Contract; (xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; (xix) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; or (xx) enter into new hedging arrangements or terminate or modify existing hedging arrangements.
Appears in 2 contracts
Samples: Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (Crystal River Capital, Inc.)
Conduct of Company’s Business. From During the period from the date of this Agreement through to the ClosingEffective Time, the Company (a) shall maintain its existence and carry on its business in the Ordinary Course and, to the extent consistent therewith, (b) shall use commercially all reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships to the end that its goodwill with customers, suppliers, licensors, licensees, distributors and ongoing others having business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent dealings with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d)it. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or to the Effective Time, except as otherwise contemplated by this Agreement or as set forth on Schedule 4.7 disclosed in Section 6.1 of the Company Letter or is necessary to preserve the Company’s REIT statusDisclosure Schedule, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent approval of Parent:
(i) adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents;
(ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iva) (xi) declare, set aside or pay any dividends on, or make any other actualdistributions (whether in cash, constructive stock or deemed distributions property) in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than dividends and other distributions by Subsidiaries of the Company to the Company or its wholly-owned SubsidiariesSecurities, (yii) other than in the case of any wholly-owned Subsidiary of the Companyadjust, split, combine or reclassify any of its capital stock Company Securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock any Company Securities, except as permitted by Section 6.1(b)(iii), or (ziii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its non-wholly-owned Subsidiaries of the Company or any other debt or equity securities of any of them Securities or any rights, warrants or options to acquire any such shares Company Securities or any other securities;
(vb) (i) grant any options, warrants or rights to purchase Company Securities, (ii) amend or reprice any outstanding option, warrant or right to purchase Company Securities, or (iii) issue, deliver or sell, or pledge or otherwise encumber, or authorize or propose to issue, deliver or sell, or pledge or otherwise encumber, any Company Securities, other than the issuance of Company Common Stock upon (A) the exercise of outstanding Options set forth in the Company Disclosure Schedule in accordance with their present terms, and (B) the exercise of rights pursuant to the Stock Purchase Plan in accordance with its present terms, provided that the participants thereunder shall be entitled to purchase Shares with accumulated payroll deductions as permitted under Section 7.7(b) hereof;
(c) amend or propose to amend its certificate of incorporation, bylaws or other organizational documents, create or establish any Subsidiaries, or adopt or implement a plan of consolidation, merger or reorganization other than in connection with the Merger;
(d) amend, modify or waive any material term of any outstanding Company Security;
(i) amend any existing agreement or instrument, or enter into any new agreement or instrument, in each case relating to the assumption or incurrence of indebtedness for borrowed money (except that the Company may draw on its existing credit facilities in the Ordinary Course, so long as the aggregate principal amount of indebtedness outstanding under such facilities does not exceed $22 million; PROVIDED, however, that (x) such $22 million limit may be increased if and only if the applicable draws on the Company's existing credit facilities are made for items contemplated by the budget delivered electronically to Parent on March 13, 2003 at 7:18 p.m., and (y) draws for purposes not contemplated in such budget and over such limit may be made with the consent of Parent, such consent not to be unreasonably withheld or delayed), or to the guarantee of any indebtedness or the issuance or sale of any debt securities or warrants or rights to acquire any debt securities of the Company or the guarantee of any debt securities of others or enter into any lease (whether an operating or capital lease) other than in the Ordinary Course or create any Liens on the properties or assets of the Company, or enter into any "keep well" or other agreement or arrangement to maintain the financial condition of another Person, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than loans or advances to customers in the Ordinary Course and in compliance with any applicable Law;
(f) make any capital expenditures or acquisitions of properties or assets other than in the Ordinary Course;
(i) enter into or amend in any material respect any employment, consulting or similar agreement or arrangement with, or grant any material increase in compensation or benefits to, any current or former director of the Company or, other than in the Ordinary Course, any officer or employee of the Company, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any existing Company Benefit Plan as in effect on the date hereof to any such director or, other than in the Ordinary Course, to any such officer or employee, (iii) except as may be required to comply with applicable law, become obligated under any new Company Benefit Plan which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of materially enhancing any benefits thereunder, or (iv) grant to any current or former director, officer or employee any increase in severance or termination pay (including the acceleration in the exercisability of Options or in the vesting of Shares (or other property) except for automatic acceleration in accordance with the terms of this Agreement or the terms of Options issued pursuant to the Stock Incentive Plan and in effect at the date of this Agreement and listed on Schedule 4.5 of the Company Disclosure Schedule);
(h) acquire (xi) by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets or properties of or equity inof, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof thereof, or (yii) except in the Ordinary Course, any assets or properties that areare material, individually or in the aggregate, material to the Company and its Subsidiaries taken as a wholeCompany;
(vii) other than dispositions in the Ordinary Course which are not material, individually or in the aggregate, to the Company, sell, lease (other than the subleasing of excess office space)lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets, other than in the Ordinary Course or in the Additional Transactions;
(viij) other than in the Ordinary Course, incur or assume any indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, or enter into any arrangement having the economic effect of any of the foregoing;
(viii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any wholly-owned Subsidiary of the Company other than as contemplated in the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) voluntarily take any action that would is reasonably be expected likely to result in any of the Company's representations or warranties hereunder being untrue in any material respect or in any of the Company's covenants hereunder or any of the conditions set forth in Section 5.1 or 5.3 to the Merger not being satisfied in a timely manner as contemplated by this Agreement; or
(xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plansatisfied;
(xivk) settle or compromise waive any material litigation for an amount in excess term of $250,000, any confidentiality or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any standstill agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates)affiliates;
(xvil) authorizeimplement or adopt any change in its accounting principles, recommendpractices or methods, propose other than as required by GAAP, or announce an intention to adopt a plan change any of complete or partial liquidation or dissolution its methods of the Company or any Subsidiary of the Companyreporting income and deductions for Federal income tax purposes;
(xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (Bm) other than in the Ordinary Course, enter into a new contractany material Contract, or amend or modify any material Contract, lease, agreement or arrangement thatcommitment;
(n) assign, if entered into prior waive, release or relinquish any material Contract right or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the Ordinary Course; or
(o) authorize any of, or commit or agree to take any of, the foregoing actions. Furthermore, during the period from the date of this AgreementAgreement to the Effective Time, would have been except where the Company determines upon advice of counsel that disclosure could result in the violation by the Company or Parent of state or federal law, the Company shall confer on a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain regular basis with Parent concerning operational matters, promptly advise Parent in compliance with all material terms and provisions writing of any Contract, where such failures change or event that has or could reasonably be expected to complyhave, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
Effect on the Company. Each of Parent and the Company shall promptly provide the other (xixor its counsel) authorize, recommend, propose with copies of all filings made by it with the SEC or announce an intention to do any of other Governmental Authority (whether or not in connection with this Agreement and the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; or
(xx) enter into new hedging arrangements or terminate or modify existing hedging arrangementstransactions contemplated hereby).
Appears in 2 contracts
Samples: Merger Agreement (Interlott Technologies Inc), Merger Agreement (Gtech Holdings Corp)
Conduct of Company’s Business. From Except as otherwise provided in, contemplated by or permitted by this Agreement, or as set forth in Section 5.1 of the Company Disclosure Schedule, between the date of this Agreement through hereof and the ClosingEffective Time, the Company shall, and shall cause its Subsidiaries, (ai) shall maintain its existence and carry on its business to operate their respective businesses in the Ordinary Course andof Business, and (ii) to the extent consistent therewith, (b) shall use all commercially reasonable efforts to preserve its intact their business relationships to with customers and other third parties, and keep available the end that its goodwill service of their current officers and ongoing business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d)employees. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Effective Time, foregoing and except as otherwise contemplated by expressly provided in this Agreement or Agreement, as set forth on Schedule 4.7 in Section 5.1 of the Company Letter Disclosure Schedule or is necessary consented to preserve in writing by Parent (which consent shall not be unreasonably withheld or delayed), prior to the Company’s REIT status, Effective Time the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent:
(i) adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents;
(ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iv) (xa) declare, set aside or pay any dividends on, or make any other actualdistributions (whether in cash, constructive stock or deemed distributions property) in respect of, of any of its capital stock;
(b) purchase, redeem or otherwise make acquire any payments to its stockholders in their capacity as such, shares of capital stock or any other than dividends and other distributions by Subsidiaries securities of the Company to the Company or its wholly-owned SubsidiariesSubsidiaries or any options, (y) warrants, calls or rights to acquire any such shares or other securities, or take any action to accelerate any vesting provisions of any such shares or securities, other than in (i) the case repurchase of unvested shares of Company Common Stock, at the original price paid per share, from employees, consultants or directors upon the termination of their service relationship with the Company or any wholly-owned Subsidiary of Subsidiary, or (ii) any required action to effect the Company, vesting acceleration contemplated by any Contract existing on the date hereof;
(c) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of of, or in substitution for shares of its capital stock or any of its other securities;
(zd) purchaseissue, redeem deliver, sell, pledge or otherwise acquire encumber any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or any stock appreciation rights or other rights that are linked in any way to the price of Company Common Stock or in any way alter the capitalization structure of the Company or any of its non-wholly-owned Subsidiaries existing on the date of this Agreement (other than the issuance of shares of Company Common Stock upon the exercise of Options outstanding on the date of this Agreement pursuant to their terms as in effect on the date of this Agreement or as a result of the transactions contemplated hereby);
(e) amend its Certificate of Incorporation or Bylaws (or similar organizational documents of any Subsidiary);
(f) effect any merger, consolidation, or business combination;
(g) adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring or recapitalization of the Company or any other debt of its Subsidiaries or equity securities otherwise permit the corporate existence of the Company or any of them its Subsidiaries to be suspended, lapsed or any rights, warrants or options to acquire any such shares or other securitiesrevoked;
(vh) acquire directly or agree to acquire (x) by merging or consolidating withindirectly, or by purchasing a substantial portion of the assets or properties of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or (y) any assets or properties that are, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole;
(vi) sell, lease (other than the subleasing of excess office space)lease, licensesell and leaseback, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assetsproperties or assets or any interest therein, other than (i) in the Ordinary Course of Business, (ii) any Liens for taxes not yet due and payable or being contested in good faith and (iii) such mechanics' and similar Liens, if any, as do not materially detract from the Additional Transactionsvalue of any such properties or assets;
(viii) other than in the Ordinary Course(i) repurchase, prepay or incur or assume any indebtedness for borrowed moneyor assume, guarantee or endorse any such indebtedness, indebtedness of another Person or issue or sell any debt securities or warrants options, warrants, calls or other rights to acquire any debt securities of the CompanyCompany or any of its Subsidiaries, guarantee except for borrowings incurred in the Ordinary Course of Business or otherwise support any debt securities transactions between the Company and Parent or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Person, or enter into any arrangement having the economic effect of any of the foregoing;
(viii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of than the Company or any direct or indirect wholly-owned Subsidiary of the Company other than as contemplated in the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) take any action that would reasonably be expected to result in any of the conditions set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as contemplated by this Agreement; or
(xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xviij) enter into, modify, amend or terminate (i) any Contract which if so entered into, modified, amended or terminated would (A) materially amend or terminatehave a Material Adverse Effect on the Company, or waive compliance with the material terms of or material breaches under any Contract or (B) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (C) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (ii) except in the Ordinary Course of Business, any Company Listed Contract;
(k) (i) purchase, acquire, lease or license-in any material assets in any single transaction or series of related transactions having a fair market value in excess of $200,000; (ii) sell, transfer or otherwise dispose of any material assets other than sales of its products and other non-exclusive licenses of software in the Ordinary Course of Business; (iii) enter into any exclusive license, distribution, marketing or sales agreements; (iv) enter into any commitments to any person to develop Software without charge; (v) sell, transfer or otherwise dispose of any of Company-owned Intellectual Property other than in connection with sales of its products and non-exclusive licenses in the Ordinary Course of Business; (v) terminate any material Software development project that is currently ongoing, unless pursuant to the terms of an existing Contract with a customer; or (vi) grant "most favored customer" pricing to any Person other than in the Ordinary CourseCourse of Business;
(i) except as otherwise contemplated by this Agreement or as required to comply with applicable law, enter into a new contract, agreement rule or arrangement that, if entered into prior to regulation or any Contract or Benefit Plans existing on the date of this Agreement, would have been a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all pay any material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do any benefit not provided for as of the foregoingdate of this Agreement under any Contract or Benefit Plan, or (ii) enter into, modify, amend or terminate any Benefit Plan, or (iii) adopt or enter into any contractcollective bargaining agreement or other labor union contract applicable to the employees of the Company or any Subsidiary thereof;
(m) maintain insurance at less than current levels or otherwise in a manner inconsistent with past practice in any material respect;
(n) except as required by GAAP, agreement, commitment or arrangement to do revalue any of the foregoing; orits material assets or make any changes in accounting methods, principles or practices;
(xxo) make or rescind any material election relating to Taxes or settle or compromise any material Tax liability or enter into new hedging arrangements any closing or terminate other agreement with any Tax authority with respect to any material Tax liability, or modify existing hedging arrangementsfile or cause to be filed any material amended Tax return, file or cause to be filed any claim for material refund of Taxes previously paid, or agree to an extension of a statute of limitations with respect to the assessment or determination of Taxes;
(p) fail to file any material Tax returns when due, fail to cause such Tax returns when filed to be materially true, correct and complete, prepare or fail to file any Tax return in a manner inconsistent with past practices in preparing or filing similar Tax returns in prior periods or, on any such Tax return of the Company, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax returns in prior periods, in each case, except to the extent required by applicable Legal Requirements, or fail to pay any material Taxes when due;
(q) effectuate a "plant closing" or "mass layoff," as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, affecting in whole or in part any site of employment, facility, operating unit or employee of Company or any of its Subsidiaries; and
(r) authorize any of, or commit, resolve or agree to take any of, the foregoing actions. Notwithstanding the preceding provisions of this Section 5.1, between the date hereof and the Effective Time, the Company may, after providing notice to Parent, in the Company's sole discretion and without the consent of Parent, comply with its legally binding obligations outstanding as of the date hereof which have been either provided to Parent or disclosed in the Company SEC Documents in accordance with the terms of such agreements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (QRS Corp), Merger Agreement (QRS Corp)
Conduct of Company’s Business. From Except as otherwise provided in, contemplated by or permitted by this Agreement, or as set forth in Section 5.1 of the Company Disclosure Schedule, between the date of this Agreement through hereof and the ClosingEffective Time, the Company shall, and shall cause its Subsidiaries, (ai) shall maintain its existence and carry on its business to operate their respective businesses in the Ordinary Course andof Business, and (ii) to the extent consistent therewith, (b) shall use all commercially reasonable efforts to preserve its intact their business relationships to with customers and other third parties, and keep available the end that its goodwill service of their current officers and ongoing business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d)employees. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Effective Time, foregoing and except as otherwise contemplated by expressly provided in this Agreement or Agreement, as set forth on Schedule 4.7 in Section 5.1 of the Company Letter Disclosure Schedule or is necessary consented to preserve in writing by Parent (which consent shall not be unreasonably withheld or delayed), prior to the Company’s REIT status, Effective Time the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent:
(i) adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents;
(ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iv) (xa) declare, set aside or pay any dividends on, or make any other actualdistributions (whether in cash, constructive stock or deemed distributions property) in respect of, of any of its capital stock;
(b) purchase, redeem or otherwise make acquire any payments to its stockholders in their capacity as such, shares of capital stock or any other than dividends and other distributions by Subsidiaries securities of the Company to the Company or its wholly-owned SubsidiariesSubsidiaries or any options, (y) warrants, calls or rights to acquire any such shares or other securities, or take any action to accelerate any vesting provisions of any such shares or securities, other than in (i) the case repurchase of unvested shares of Company Common Stock, at the original price paid per share, from employees, consultants or directors upon the termination of their service relationship with the Company or any wholly-owned Subsidiary of Subsidiary, or (ii) any required action to effect the Company, vesting acceleration contemplated by any Contract existing on the date hereof;
(c) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of of, or in substitution for shares of its capital stock or any of its other securities;
(zd) purchaseissue, redeem deliver, sell, pledge or otherwise acquire encumber any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or any stock appreciation rights or other rights that are linked in any way to the price of Company Common Stock or in any way alter the capitalization structure of the Company or any of its non-wholly-owned Subsidiaries existing on the date of the Company or any other debt or equity securities of any of them or any rights, warrants or options to acquire any such shares or other securities;
(v) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets or properties of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or (y) any assets or properties that are, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole;
(vi) sell, lease this Agreement (other than the subleasing issuance of excess office space), license, mortgage shares of Company Common Stock upon the exercise of Options outstanding on the date of this Agreement pursuant to their terms as in effect on the date of this Agreement or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assets, other than in the Ordinary Course or in the Additional Transactions;
(vii) other than in the Ordinary Course, incur or assume any indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities as a result of the Company, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, or enter into any arrangement having the economic effect of any of the foregoing;
(viii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any wholly-owned Subsidiary of the Company other than as transactions contemplated in the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changeshereby);
(xe) amend its Certificate of Incorporation or Bylaws (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) take any action that would reasonably be expected to result in any of the conditions set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as contemplated by this Agreement; or
(xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment organizational documents of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its AffiliatesSubsidiary);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (B) other than in the Ordinary Course, enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; or
(xx) enter into new hedging arrangements or terminate or modify existing hedging arrangements.
Appears in 1 contract
Samples: Merger Agreement (QRS Corp)
Conduct of Company’s Business. From Except as otherwise provided in, contemplated by or permitted by this Agreement, or as set forth in Section 5.1 of the Company Disclosure Schedule, between the date of this Agreement through hereof and the ClosingEffective Time, the Company shall, and shall cause its Subsidiaries, (ai) shall maintain its existence and carry on its business to operate their respective businesses in the Ordinary Course andof Business, and (ii) to the extent consistent therewith, (b) shall use all commercially reasonable efforts to preserve its intact their business relationships to with customers and other third parties, and keep available the end that its goodwill service of their current officers and ongoing business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d)employees. Without limiting the generality of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Effective Time, foregoing and except as otherwise contemplated by expressly provided in this Agreement or Agreement, as set forth on Schedule 4.7 in Section 5.1 of the Company Letter Disclosure Schedule or is necessary consented to preserve in writing by Parent (which consent shall not be unreasonably withheld or delayed), prior to the Company’s REIT status, Effective Time the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent:
(i) adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents;
(ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iv) (xa) declare, set aside or pay any dividends on, or make any other actualdistributions (whether in cash, constructive stock or deemed distributions property) in respect of, of any of its capital stock;
(b) purchase, redeem or otherwise make acquire any payments to its stockholders in their capacity as such, shares of capital stock or any other than dividends and other distributions by Subsidiaries securities of the Company to the Company or its wholly-owned SubsidiariesSubsidiaries or any options, (y) warrants, calls or rights to acquire any such shares or other securities, or take any action to accelerate any vesting provisions of any such shares or securities, other than in (i) the case repurchase of unvested shares of Company Common Stock, at the original price paid per share, from employees, consultants or directors upon the termination of their service relationship with the Company or any wholly-owned Subsidiary of Subsidiary, or (ii) any required action to effect the Company, vesting acceleration contemplated by any Contract existing on the date hereof;
(c) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of of, or in substitution for shares of its capital stock or any of its other securities;
(zd) purchaseissue, redeem deliver, sell, pledge or otherwise acquire encumber any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or any stock appreciation rights or other rights that are linked in any way to the price of Company Common Stock or in any way alter the capitalization structure of the Company or any of its non-wholly-owned Subsidiaries existing on the date of this Agreement (other than the issuance of shares of Company Common Stock upon the exercise of Options outstanding on the date of this Agreement pursuant to their terms as in effect on the date of this Agreement or as a result of the transactions contemplated hereby);
(e) amend its Certificate of Incorporation or Bylaws (or similar organizational documents of any Subsidiary);
(f) effect any merger, consolidation, or business combination;
(g) adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring or recapitalization of the Company or any other debt of its Subsidiaries or equity securities otherwise permit the corporate existence of the Company or any of them its Subsidiaries to be suspended, lapsed or any rights, warrants or options to acquire any such shares or other securitiesrevoked;
(vh) acquire directly or agree to acquire (x) by merging or consolidating withindirectly, or by purchasing a substantial portion of the assets or properties of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or (y) any assets or properties that are, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole;
(vi) sell, lease (other than the subleasing of excess office space)lease, licensesell and leaseback, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assetsproperties or assets or any interest therein, other than (i) in the Ordinary Course of Business, (ii) any Liens for taxes not yet due and payable or being contested in good faith and (iii) such mechanics’ and similar Liens, if any, as do not materially detract from the Additional Transactionsvalue of any such properties or assets;
(viii) other than in the Ordinary Course(i) repurchase, prepay or incur or assume any indebtedness for borrowed moneyor assume, guarantee or endorse any such indebtedness, indebtedness of another Person or issue or sell any debt securities or warrants options, warrants, calls or other rights to acquire any debt securities of the CompanyCompany or any of its Subsidiaries, guarantee except for borrowings incurred in the Ordinary Course of Business or otherwise support any debt securities transactions between the Company and Parent or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Person, or enter into any arrangement having the economic effect of any of the foregoing;
(viii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of than the Company or any direct or indirect wholly-owned Subsidiary of the Company other than as contemplated in the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) take any action that would reasonably be expected to result in any of the conditions set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as contemplated by this Agreement; or
(xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xviij) enter into, modify, amend or terminate (i) any Contract which if so entered into, modified, amended or terminated would (A) materially amend or terminatehave a Material Adverse Effect on the Company, or waive compliance with the material terms of or material breaches under any Contract or (B) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (C) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (ii) except in the Ordinary Course of Business, any Company Listed Contract;
(k) (i) purchase, acquire, lease or license-in any material assets in any single transaction or series of related transactions having a fair market value in excess of $200,000; (ii) sell, transfer or otherwise dispose of any material assets other than sales of its products and other non-exclusive licenses of software in the Ordinary Course of Business; (iii) enter into any exclusive license, distribution, marketing or sales agreements; (iv) enter into any commitments to any person to develop Software without charge; (v) sell, transfer or otherwise dispose of any of Company-owned Intellectual Property other than in connection with sales of its products and non-exclusive licenses in the Ordinary Course of Business; (v) terminate any material Software development project that is currently ongoing, unless pursuant to the terms of an existing Contract with a customer; or (vi) grant “most favored customer” pricing to any Person other than in the Ordinary CourseCourse of Business;
(i) except as otherwise contemplated by this Agreement or as required to comply with applicable law, enter into a new contract, agreement rule or arrangement that, if entered into prior to regulation or any Contract or Benefit Plans existing on the date of this Agreement, would have been a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all pay any material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do any benefit not provided for as of the foregoingdate of this Agreement under any Contract or Benefit Plan, or (ii) enter into, modify, amend or terminate any Benefit Plan, or (iii) adopt or enter into any contractcollective bargaining agreement or other labor union contract applicable to the employees of the Company or any Subsidiary thereof;
(m) maintain insurance at less than current levels or otherwise in a manner inconsistent with past practice in any material respect;
(n) except as required by GAAP, agreement, commitment or arrangement to do revalue any of the foregoing; orits material assets or make any changes in accounting methods, principles or practices;
(xxo) make or rescind any material election relating to Taxes or settle or compromise any material Tax liability or enter into new hedging arrangements any closing or terminate other agreement with any Tax authority with respect to any material Tax liability, or modify existing hedging arrangementsfile or cause to be filed any material amended Tax return, file or cause to be filed any claim for material refund of Taxes previously paid, or agree to an extension of a statute of limitations with respect to the assessment or determination of Taxes;
(p) fail to file any material Tax returns when due, fail to cause such Tax returns when filed to be materially true, correct and complete, prepare or fail to file any Tax return in a manner inconsistent with past practices in preparing or filing similar Tax returns in prior periods or, on any such Tax return of the Company, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax returns in prior periods, in each case, except to the extent required by applicable Legal Requirements, or fail to pay any material Taxes when due;
(q) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, affecting in whole or in part any site of employment, facility, operating unit or employee of Company or any of its Subsidiaries; and
(r) authorize any of, or commit, resolve or agree to take any of, the foregoing actions. Notwithstanding the preceding provisions of this Section 5.1, between the date hereof and the Effective Time, the Company may, after providing notice to Parent, in the Company’s sole discretion and without the consent of Parent, comply with its legally binding obligations outstanding as of the date hereof which have been either provided to Parent or disclosed in the Company SEC Documents in accordance with the terms of such agreements.
Appears in 1 contract
Samples: Merger Agreement (QRS Corp)
Conduct of Company’s Business. From the date of this Agreement through the ClosingSeller Parties hereby represent, the Company (a) shall maintain its existence warrant, acknowledge and carry on its business in the Ordinary Course and, to the extent consistent therewith, (b) shall use commercially reasonable efforts to preserve its business relationships to the end that its goodwill and ongoing business shall continue at the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing of any Material Adverse Effect or any matter which would reasonably be expected to result in the Company being unable to deliver the certificate described in Section 5.3(d). Without limiting the generality of the foregoingagree that, during the period from the date of this Agreement October 31, 2007 until the earlier of the Closing or the termination of this Agreement or the Effective Timein accordance with Section 6.1, except as otherwise contemplated (i) required by this Agreement or as applicable Law, (ii) set forth on Schedule 4.7 in Section 4.1(a) of the Company Disclosure Letter or is necessary (iii) consented to preserve the Company’s REIT statusby Buyer in writing (which consent shall not be unreasonably withheld or delayed), Seller Parties have caused, and shall cause the Company shall not, nor shall it permit any of and its Subsidiaries to, without conduct the prior written consent Company’s Business in the ordinary course of Parentbusiness and, in connection therewith, subject to the foregoing, have not permitted and shall not permit the Company or its Subsidiaries to:
(i) adopt authorize or effect any amendment to or change its articles or certificate of incorporation or incorporation, by-laws or other comparable organizational documents;
(ii) make any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iv) (x) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than dividends and other distributions by Subsidiaries of the Company to the Company or its wholly-owned Subsidiaries, (y) other than in the case of any wholly-owned Subsidiary of the Company, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any equity interests or equity securities, or grant any options, warrants, or other securities in respect of, in lieu of rights to purchase or in substitution for shares of its capital stock or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or obtain any of its non-wholly-owned Subsidiaries of the Company or any other debt or equity securities or issue, sell or otherwise dispose of any of them or its equity securities;
(iii) issue any rightsnote, warrants or options to acquire any such shares bond or other securitiesdebt security, or create, incur, assume or guarantee any Indebtedness, other than advances or draws under existing Indebtedness in the ordinary course of business or Indebtedness between the Company and its Subsidiaries;
(iv) enter into any material Contract, or materially amend or modify any existing material Contract;
(v) acquire except in the ordinary course of business, sell, lease, transfer, mortgage, pledge or otherwise dispose of or encumber any of the property or assets of the Company and its Subsidiaries, and other than pursuant to existing contracts or commitments;
(vi) make any capital expenditure, or commitments therefor, in the aggregate in excess of $300,000;
(vii) cancel, compromise or settle any material claim, or intentionally waive or release any material rights, of the Company or its Subsidiaries;
(viii) adopt, enter into, amend, alter or terminate any Company Plan, except as required under applicable Law, any existing Company Plan or any existing Employment Agreement;
(ix) adopt, enter into, amend, alter or terminate any employment agreement with any employee or grant or agree to acquire grant any increase in the wages, salary, bonus or other compensation, remuneration or benefits of any employee of the Company or its Subsidiaries, except for non-material increases in the ordinary course of business;
(x) make any changes to their accounting principles or practices, other than as may be required by merging Law or consolidating with, or by purchasing a substantial portion GAAP in the jurisdictions of incorporation of the assets relevant Company or properties Subsidiary;
(xi) acquire (by merger, consolidation or acquisition of stock or equity inassets, or by any other manner, any business or than as a result of the Pre-Closing Merger) any corporation, partnership, limited liability company, association partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit, or enter into any joint venture, partnership or other similar arrangement or form any other new arrangement for the conduct of the Company’s Business;
(yxii) permit, to the extent within its control, any assets insurance policy naming the Company or properties that are, individually any of its Subsidiaries as a beneficiary or in a loss payable payee to be canceled or terminated or any of the aggregate, material coverage applicable to the Company and or any of its Subsidiaries taken as a wholethereunder to lapse, unless, simultaneously with such termination, cancellation or lapse, replacement policies providing substantially similar coverage are in full force and effect;
(vixiii) sellmake material concessions to, lease (other than the subleasing of excess office space)or materially modify, license, mortgage material supplier or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assets, other than in the Ordinary Course or in the Additional Transactionscustomer Contracts;
(viixiv) other than in the Ordinary Course, incur or assume any indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, other than advances for employee expenses in the ordinary course of business and loans between the Company and its Subsidiaries;
(xv) terminate any Company Lease or enter into close any arrangement having branches other than such terminations or closings, if any, set forth on Section 4.1(a) of the economic effect Company Disclosure Letter;
(xvi) make any payment, or distribute its or their property or assets, to or as directed by any of the Seller Parties or any Related Person of any of the foregoingSeller Parties, whether pursuant to any Contract (including the Terminating Contracts) or otherwise;
(viiixvii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any wholly-owned Subsidiary of the Company other than as contemplated the Eligible Transaction Expenses, incur any expenses in connection with the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) take any action that would reasonably be expected to result in any of the conditions set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as transactions contemplated by this Agreement; or
(xiii) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (B) other than in the Ordinary Course, enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been a Contract;and
(xviii) fail agree to use commercially reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do take any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of actions prohibited by the foregoing; or
foregoing clauses (xxi) enter into new hedging arrangements or terminate or modify existing hedging arrangementsthrough (xvii).
Appears in 1 contract
Conduct of Company’s Business. From Between the date of this Agreement through and the ClosingClosing Date, except with the Company prior written consent of Acquiror:
(a) The Company shall, and the Company shall maintain its existence and carry on cause each of the other Acquired Companies to, (i) conduct its business in the Ordinary Course and, to the extent consistent therewitha diligent manner, (bii) shall not make any material change in its business practices, and (iii) use commercially reasonable their best efforts to preserve its their business relationships to organization intact, keeping available the end that its services of their current officers, employees, salesmen, agents and representatives, and maintaining the goodwill of their customers, suppliers and ongoing other Persons having business shall continue at relations with the time of the Closing and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the CompanyAcquired Companies. The Company shall promptly answer any reasonable inquiries regularly consult with Acquiror as to the management of Parent with respect to operational matters the business and promptly advise Parent orally and in writing affairs of any Material Adverse Effect or any matter which would reasonably be expected to result the Acquired Companies.
(b) Except in the Company being unable to deliver the certificate described in Section 5.3(d). Without limiting the generality ordinary course of the foregoing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Effective Time, except as otherwise contemplated by this Agreement or as set forth on Schedule 4.7 of the Company Letter or is necessary to preserve the Company’s REIT statusits business consistent with its past practices, the Company shall not, nor and the Company shall it not permit any of its Subsidiaries the other Acquired Companies to, without the prior written consent of Parent:
(i) create or assume any Encumbrances upon any of their business or Assets, (ii) incur any Obligation, (iii) make any loan or advance to any Person, (iv) assume, guarantee or otherwise become liable for any Obligation of any Person, (v) commit for any capital expenditure, (vi) purchase, lease, sell, abandon or otherwise acquire or dispose of any business or Assets, (vii) waive any right or cancel any debt or claim, (viii) assume or enter into any Contract other than this Agreement and the Plan (and any other Contract contemplated herein), (ix) increase, or authorize an increase in, the compensation or benefits paid or provided to any of their directors, officers, employees, salesmen, agents or representatives, or (x) do anything else outside the ordinary course of their business consistent with its past practices, whether or not specifically described in any of the foregoing clauses.
(c) Even in the ordinary course of their respective businesses consistent with their past practices, the Company shall not, and the Company shall not permit any of the other Acquired Companies to, incur any obligation, make any loan to any Person, acquire or dispose of any business or assets, enter into any Contract (excluding Customer Contracts and related commitments entered into in the ordinary course of business consistent with past practices) or other transaction, or do any of the other things described in Section 5.2(b), involving, in any single case, an amount exceeding $100,000 or, in the aggregate, an amount exceeding $500,000.
(d) The Company shall not, and the Company shall not permit any of the other Acquired Companies to, (i) permit or cause a material breach or default by them under any of their Contracts, Insurance Policies, licenses or Permits, (ii) adopt or enter into any amendment new Employee Benefit Plan, modify or waive any right under any existing Employee Benefit Plan or any Contract or award under any existing Employee Benefit Plan, (iii) participate in any merger, consolidation, reorganization, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iv) begin to engage in any new type of business, (v) acquire the business or any bulk assets of any other Person, (vi) completely or partially liquidate or dissolve, (vii) terminate any part of their business, (viii) change any of its articles methods of accounting or certificate accounting practices in any respect, (ix) make any Tax election, or (x) commence any Proceeding or settle any Proceeding.
(e) The Company shall, and the Company shall cause each of the other Acquired Companies to, (i) maintain their Real Property and Tangible Property in good condition and repair, (ii) maintain their Insurance Policies and Permits in full force and effect, (iii) repair, restore or replace any of their Assets that are damaged, destroyed, lost or stolen, (iv) comply with all applicable Contracts, Permits and Laws, (v) properly file all Tax returns, annual reports and other returns and reports required to be filed by them, and (vi) fully pay when due all Taxes and fees payable by each of them.
(f) The Company shall, and the Company shall cause each of the other Acquired Companies to, maintain their corporate existence and good standing in their respective jurisdictions of incorporation and their good standing in each jurisdiction where they are currently qualified as a foreign corporation. The Company shall not, and the Company shall not permit any of the other Acquired Companies to, amend their certificates or articles, as the case may be, of incorporation or by-laws or other comparable organizational documents;bylaws.
(iig) make The Company shall not, and the Company shall not permit any change to the fee and expense arrangements existing as of the date hereof other Acquired Companies to, (xi) relating to the engagement and retention of the Company Financial Advisor redeem, retire or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issuepurchase, deliveror create, sell, pledgegrant or issue any capital stock or other security, dispose of any options, warrants or otherwise encumber other Contracts or Contract Rights with respect to, any shares of its capital stock, any stock or other voting securities or equity equivalent or any securities convertible intosecurities, or create, sell, grant or issue any stock options, stock appreciation rights, warrants phantom shares or options to acquireother similar rights; provided, any such shareshowever, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company may issue Company Common Stock upon the valid exercise of stock options or vesting Company Options outstanding as of restricted or deferred stock outstanding on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
of this Agreement; (iv) (xii) declare, accrue, set aside or pay any dividends on, dividend or make any other actual, constructive or deemed distributions in distribution with respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than dividends and other distributions by Subsidiaries of the Company to the Company or its wholly-owned Subsidiaries, (y) other than in the case of any wholly-owned Subsidiary of the Company, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (z) purchase, redeem or otherwise acquire any shares of capital stock, except that if the Effective Date shall not have occurred prior to the date in any given fiscal quarter that corresponds to the date in the same fiscal quarter of the Company's immediately preceding fiscal year on which the Company's regular quarterly cash dividend on its Common Stock was paid, the Company may declare and pay a cash dividend on the Company's Common Stock for such fiscal quarter in an amount not to exceed $.0125 per share; or (iii) form any subsidiary or acquire any equity or other interest in any Person.
(h) The Company shall maintain all shares of the capital stock of the other Acquired Companies owned or held by it free and clear of all Encumbrances.
(i) The Company shall not, and the Company shall cause each of the other Acquired Companies not to, buy, sell or engage in any other transaction involving Acquiror Common Stock, other securities of Acquiror or any of its non-wholly-owned Subsidiaries of the Company or any other debt or equity securities of any of them or any rightsinterests in Acquiror, warrants or options to acquire any such shares or other securities;
(v) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets or properties of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or (y) any assets or properties that are, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole;
(vi) sell, lease (other than the subleasing of excess office space), license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material assets, Merger and the other than in the Ordinary Course or in the Additional Transactions;.
(viij) other than in The Company shall not and the Ordinary Course, incur or assume any indebtedness for borrowed money, guarantee any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities Company shall cause each of the CompanyAcquired Companies not to, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, or enter into any arrangement having the economic effect of Contract that commits it or them to take any of the foregoing;
(viii) alter (through merger, liquidation, reorganization, restructuring action or in any other fashion) the corporate structure or ownership of the Company or any wholly-owned Subsidiary of the Company other than as contemplated in the Additional Transactions;
(ix) change or modify the accounting methods, principles or practices used by it (other than changes or modifications required omit to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xii) take any action that would reasonably be expected to result in inconsistent with any of the conditions provisions of this Section 5.2 or any other provisions of this Agreement or the Plan.
(k) The Company shall cause the Acquired Companies, on or before February 15, 1999, to notify the customers that the Acquired Companies will no longer provide or support their ADV or Pension timesharing service unless such service shall comply with the standards set forth in Section 5.1 or 5.3 not being satisfied in a timely manner as contemplated by this Agreement; or
clause (xiiif) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, or otherwise modify any employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries sixth sentence of the Company or Parent or its Affiliates);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (B) other than in the Ordinary Course, enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; or
(xx) enter into new hedging arrangements or terminate or modify existing hedging arrangementsSection 3.14.
Appears in 1 contract
Conduct of Company’s Business. From During the period from the date of hereof to the Closing Date or the date, if any, on which this Agreement through the Closingis earlier terminated pursuant to its terms (“Pre-Closing Period”), the Company (a) shall, and shall maintain its existence and carry on its business in the Ordinary Course andcause each Company Subsidiary to, to the extent consistent therewith, (b) shall use commercially reasonable efforts to (a) carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (b) consistent with past practices and policies, preserve its intact the Company’s and each of the Company Subsidiary’s current business organizations, keep available the services of their respective current officers and employees and preserve their respective relationships with customers, suppliers and others having business relationships to the end that its goodwill and ongoing business shall continue at the time of the Closing with them, and (c) shall preserve the Company’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, or permit any status to exist, that would likely jeopardize, or is inconsistent with, the Company’s status as a REIT for any period; provided, however, that taking actions required by this Agreement or at the direction of Parent or Sub (or refraining from taking actions prohibited by this Agreement) shall not constitute a breach by the Company. The Company shall promptly answer any reasonable inquiries of Parent with respect to operational matters and promptly advise Parent orally and in writing notify Buyer of any Material Adverse Effect event or any matter which would occurrence that will have or could reasonably be expected to result in the have a Company being unable to deliver the certificate described in Section 5.3(d)Material Adverse Effect. Without limiting the generality of the foregoingIn addition, during the period from Pre-Closing Period, the date of this Agreement until the earlier of the termination of this Agreement or the Effective TimeCompany, except as otherwise contemplated by this Agreement or as set forth on Schedule 4.7 5.1 or as required by this Agreement, shall not, and shall cause each Company Subsidiary not to:
(a) amend their respective Organizational Documents or Constitutional Documents;
(b) declare or pay any dividends or distributions on its outstanding capital stock, except for dividends and distributions of the Company Letter or is necessary Subsidiaries to preserve the Company’s REIT status, the Company shall not, nor shall it permit purchase, redeem or otherwise acquire for consideration any of its Subsidiaries to, without the prior written consent of Parent:
(i) adopt any amendment to its articles or certificate of incorporation or by-laws capital stock or other comparable organizational documentssecurities;
(iic) make issue or sell any change to the fee and expense arrangements existing as of the date hereof (x) relating to the engagement and retention of the Company Financial Advisor or (y) relating to the engagement and retention of counsel to the Company (including Xxxxxxx Procter LLP);
(iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, effect any other voting securities stock split or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of the Company Common Stock upon the exercise of stock options or vesting of restricted or deferred stock outstanding otherwise change its capitalization as it exists on the date hereof pursuant to the Company Stock Plan and in accordance with their terms;
(iv) (x) declare, set aside or pay any dividends onhereof, or make issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other actualrights, constructive securities or deemed distributions in respect of, commitments obligating it to issue or sell any of its capital stock, or otherwise make any payments to its stockholders in their capacity as suchsecurities or obligations convertible into, other than dividends and other distributions by Subsidiaries of the Company to the Company or its wholly-owned Subsidiariesexercisable or exchangeable for, (y) other than in the case of any wholly-owned Subsidiary of the Company, split, combine or reclassify any of its capital stock stock;
(d) borrow or issue agree to borrow any funds or authorize voluntarily incur or assume, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the issuance ordinary course of business consistent with past practices;
(e) pay, discharge or satisfy any claim or Liability in excess of $10,000 (in any one case) or $25,000 (in the aggregate), other than (i) obligations reflected on or reserved against in the Company Balance Sheet, or (ii) obligations incurred since the Balance Sheet Date in the ordinary course of business consistent with past practices or in connection with the Transactions;
(f) except as required by Applicable Laws, adopt or amend in any material respect, any agreement or plan (including severance arrangements) for the benefit of its employees;
(g) sell, mortgage, pledge or otherwise encumber or dispose of any other securities in respect ofof its assets that are material, in lieu of individually or in substitution for shares of its capital stock or (z) purchasethe aggregate, redeem or otherwise acquire any shares of capital stock to the business of the Company or any Company Subsidiary, except in the ordinary course of its non-wholly-owned Subsidiaries of the Company or any other debt or equity securities of any of them or any rights, warrants or options to acquire any such shares or other securitiesbusiness consistent with past practices;
(vh) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing any equity interest in or a substantial material portion of the assets or properties of or equity in, or by any other mannerof, any business or any corporationother Person, partnership, limited liability company, association or other business organization or division thereof or (y) otherwise acquire any assets or properties that areare material, individually or in the aggregate, material to the business of the Company and its Subsidiaries taken as a wholeor any Company Subsidiary, except in the ordinary course of business consistent with past practices;
(vii) sell, lease increase the following amounts payable or to become payable: (other than i) the subleasing of excess office space), license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose salary of any of its material assetsdirectors or officers, other than increases in the ordinary course of business consistent with past practices and not exceeding, in any case, five percent of the director’s or officer’s salary on the date hereof, (ii) any other compensation of its directors or officers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with any of those persons, other than increases that are provided in the ordinary course of business consistent with past practices to broad categories of employees and do not discriminate in favor of the aforementioned persons, (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices, and (iv) equity compensation;
(j) dispose of, permit to lapse, or otherwise fail to preserve the rights of the Company or any Company Subsidiary to use the Company Proprietary Rights or enter into any settlement regarding the breach or infringement of, any Company Proprietary Rights, or modify any existing rights with respect thereto, other than in the Ordinary Course ordinary course of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or in the Additional Transactionsmodification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(viik) other than in the Ordinary Coursesell, incur or assume grant any indebtedness for borrowed moneyright to exclusive use of, guarantee all or any such indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities part of the Company, guarantee or otherwise support any debt securities or make any loans or advances to any other Person, or Company Proprietary Rights;
(l) enter into any arrangement having contract or commitment or take any other action that is not in the economic effect ordinary course of any of its business or could reasonably be expected to have an adverse impact on the foregoingTransactions or that could have or could reasonably be expected to have a Company Material Adverse Effect;
(viiim) alter (through merger, liquidation, reorganization, restructuring or amend in any other fashion) the corporate structure or ownership of material respect any agreement to which the Company or any wholly-owned Company Subsidiary is a party the amendment of the which will have or could reasonably be expected to have a Company other than as contemplated in the Additional TransactionsMaterial Adverse Effect;
(ixn) change waive, release, transfer or modify the accounting methodspermit to lapse any claim or right (i) that has a value, principles or practices used involves payment or receipt by it (other it, of more than changes or modifications required to be made by changes in GAAP, after the date hereof, provided that Parent receives written notice of any such changes);
(x) (A) make or rescind any material Tax election $25,000 or (Bii) settle the waiver, release, transfer or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit lapse of which would have or controversy in relation to Taxes;
(xi) violate or fail to perform any obligation or duty imposed upon it by any Law, where such violation or failure, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect;
(xiio) take any action that would reasonably be expected to result materially decrease the Closing Working Capital;
(p) make any change in any method of accounting or accounting practice other than changes required by Applicable Laws or required to be made so that the consolidated financial statements of the conditions set forth in Section 5.1 Company and the Company Subsidiaries comply with GAAP;
(q) enter into any sale/leaseback or 5.3 not being satisfied in a timely manner as contemplated by this Agreementsimilar transaction; or
(xiiir) adopt any new employee benefit plan, incentive plan, severance plan, bonus plan, stock option plan or similar plan, make any new grants under any existing stock option plan or incentive plan, bonus plan or similar plan, amend, agree or otherwise modify any employee benefit plancommit, incentive planwhether in writing or otherwise, severance plan, bonus plan, stock option plan or similar plan, or enter into or amend any employment agreement or similar agreement or arrangement or grant or become obligated to grant any bonus or any increase in the compensation of directors, officers or employees, except such changes as may be required by Law; or terminate the employment of any key employee, take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercise or funding under any employee benefit plan;
(xiv) settle or compromise any material litigation for an amount described in excess of $250,000, or waive, release or assign any material rights or claims with a value in excess of $250,000;
(xv) enter into or amend or otherwise modify any agreement with any Person that is an Affiliate of the Company (other than agreements with wholly-owned Subsidiaries of the Company or Parent or its Affiliates);
(xvi) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company;
(xvii) (A) materially amend or terminate, or waive compliance with the material terms of or material breaches under any Contract or (B) other than in the Ordinary Course, enter into a new contract, agreement or arrangement that, if entered into prior to the date of this Agreement, would have been a Contract;
(xviii) fail to use commercially reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract, where such failures to comply, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(xix) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; or
(xx) enter into new hedging arrangements or terminate or modify existing hedging arrangementsSection 5.1.
Appears in 1 contract
