Conduct of Company’s Business. The Company and the LLC agree that, ------------------------------- from and after the date hereof through the Closing Date or the earlier termination of this Agreement: (a) The business and operations of the Company and the Subsidiaries will be conducted only in the ordinary course in all material respects. The Company will use its reasonable efforts to preserve and maintain the business and properties of the Company and the Subsidiaries intact, keep available the services of their employees, and preserve for TelePad and the Buyer the relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives and others having business relations with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entity. (b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business. (c) The Company will furnish to the Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996. (d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby. (e) The Company will maintain its books and records in all material respects in accordance with prior practice. (f) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the Subsidiaries to do so. (g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy of any notice from any governmental authority of the revocation, suspension, violation, or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary. (h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business of the Company or any Subsidiary. (i) The Company will not issue any capital stock or any warrants, options or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock. (j) The LLC shall not sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stock, nor grant any right to vote or acquire any of the Company capital stock. (k) The Company will not enter into any transaction or take any action which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. (l) One time prior to the Closing Date, within five days after receipt of a written request from TelePad and the Buyer, the Company and the LLC will update their representations and warranties set forth in Article II and III hereof as if such representations and warranties were made as of the date of such update.
Appears in 1 contract
Conduct of Company’s Business. The Company and the LLC agree thatExcept as set forth on Schedule 5.1, ------------------------------- from and after between the date hereof through of the Original Agreement and the Closing Date or the date, if any, on which this Agreement is earlier termination of this Agreement:
terminated pursuant to Section 9.1 (“Pre-Closing Period”), the Company shall, except to the extent that Federal shall otherwise consent in writing (such consent not to be unreasonably withheld), (a) The business and operations of the Company and the Subsidiaries will be conducted only carry on its Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all material respects. The Company will use its commercially reasonable efforts consistent with past practices and policies to preserve and maintain intact the Company’s current business and properties of the Company and the Subsidiaries intactorganizations, keep available the services of their employees, its current officers and employees and preserve for TelePad and the Buyer the its relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives suppliers and others having business relations relationships with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc.it, to the Stockholders or any other entity.
(b) Except (i) as may end that the Company’s goodwill and ongoing Business be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to unimpaired at the Closing Date, and (iiib) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will furnish to the Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.
(f) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy notify Federal of any notice from any governmental authority of the revocation, suspension, violation, event or limitation of the rights under, occurrence which will have or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business of the Company or any Subsidiary.
(i) The Company will not issue any capital stock or any warrants, options or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.
(j) The LLC shall not sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stock, nor grant any right to vote or acquire any of the Company capital stock.
(k) The Company will not enter into any transaction or take any action which individually or in the aggregate could reasonably be expected to have a Company Material Adverse Effect.. In addition, during the Pre-Closing Period, the Company shall not, except as set forth on Schedule 5.1 or to the extent that Federal shall otherwise consent in writing:
(a) amend its Organizational Documents;
(b) except for Permitted Distributions, declare or pay any dividends or distributions on the Company’s outstanding capital stock nor purchase, redeem or otherwise acquire for consideration any of the Company’s capital stock or other securities;
(c) issue or sell any of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date of the Original Agreement, or issue, grant, or sell any options, stock appreciation (excluding grants under the UAR Plan) or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any of its capital stock;
(d) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the ordinary course of business consistent with past practices;
(e) pay, discharge or satisfy any claim or Liability in excess of $50,000 (in any one case) or $100,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the Company Balance Sheet, or 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 of the Purchased Assets which are material, individually or in the aggregate, to the Business, except in the ordinary course of business consistent with past practices;
(h) acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, any business or any other Person, or otherwise acquire any assets which are material, individually or in the aggregate, to the Business, except in the ordinary course of business consistent with past practices;
(i) increase the following amounts payable or to become payable: (i) the salary of any of its directors 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 of the Original Agreement, (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, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices;
(j) dispose of, permit to lapse, or otherwise fail to preserve the rights of the Company 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 of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(k) sell, or grant any right to exclusive use of, all or any part of the Company Proprietary Rights;
(l) One time prior enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the Transactions or that would have or could reasonably be expected to have a Company Material Adverse Effect;
(m) amend in any material respect any agreement to which the Company is a party the amendment of which will have or could reasonably be expected to have a Company Material Adverse Effect;
(n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $25,000 or (ii) the waiver, release, transfer or lapse of which would have or could reasonably be expected to have a Company Material Adverse Effect;
(o) take any action that would decrease the Net Assets below $20,000,000;
(p) make any change in any method of accounting or accounting practice other than changes required to be made so that the Company’s financial statements comply with GAAP; or
(q) agree or otherwise commit, whether in writing or otherwise, to take any action proscribed above in this Section 5.1. Notwithstanding the foregoing, during the Pre-Closing Date, within five days after receipt of a written request from TelePad and the BuyerPeriod, the Company and may, except to the LLC will update their representations and warranties set forth in Article II and III hereof as if such representations and warranties were made as extent it would have or could reasonable be expected to have a Company Material Adverse Effect, distribute or otherwise dispose of the date of such updateExcluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caci International Inc /De/)
Conduct of Company’s Business. The Company and Except as set forth in Schedule 5.6 attached hereto or as otherwise provided in this Agreement, Xxxxxx agrees to cause the LLC agree thatCompany, ------------------------------- from and after the date hereof through until the Closing Date or the earlier termination of this AgreementClosing:
(ai) The to conduct the Company's business in the ordinary course of business and operations substantially in accordance with present practices and policies;
(ii) to use commercially reasonable efforts to preserve the Company's business intact, including, but not limited to, the Company's business reputation and customer relationships;
(iii) consistent with efficient and economical management, to use commercially reasonable efforts to continue to utilize the services of those individuals who operate the Company's business, to the end that they may retain the goodwill of the Company and preserve the Subsidiaries business relationships of the Company with policyholders and others;
(iv) to use commercially reasonable efforts to maintain all material existing permits, licenses and authorizations related to the Company's business;
(v) to use commercially reasonable efforts (excluding the provision of any guaranty, commitment or other undertaking on behalf of Seller or any of its Affiliates (other than the Company) extending beyond the Closing Date, in each case other than as contemplated by this Agreement in connection with the transfer of the Non-Annuity Business) to maintain in full force and effect all material Contracts, including, without limitation, all Contracts with Third Party Vendors, related to the Company's business;
(vi) to use commercially reasonable efforts (excluding the provision of any guaranty, commitment or other undertaking on behalf of Seller or any of its Affiliates (other than the Company) extending beyond the Closing Date, in each case other than as contemplated by this Agreement in connection with the transfer of the Non-Annuity Business) to maintain each rating classification assigned as of the date hereof to the Company by insurance rating agencies;
(vii) to comply in all material respects with all Applicable Laws;
(viii) to prepare and file all Tax Returns required to be filed prior to or on the Closing Date and to pay all Taxes indicated on such Tax Returns or otherwise due and payable prior to or on the Closing Date, unless such Taxes are being contested in good faith; and
(ix) to cause all Reserve Liabilities with respect to In- Force Annuity Contracts established or reflected in the Books and Records of the Company to be (A) established and reflected on a basis consistent with those Reserve Liabilities and reserving methods followed by the Company in the preparation of the June 30, 1995 SAP Statements, subject to the exceptions described in Schedule 3.10 and item 1 of Schedule 3.11, and (B) adequate (under generally accepted actuarial standards consistently applied) to cover the total amount of all reasonably anticipated matured and unmatured benefits, dividends, losses, claims, expenses, and other liabilities of the Company under all In-Force Annuity Contracts pursuant to which the Company has or will have any liability; and cause the Company to continue to own assets that qualify as legal reserve assets under all applicable insurance laws in an amount equal to its Reserve Liabilities. Except as set forth on Schedule 5.6 attached hereto or as otherwise provided in this Agreement, Seller will prevent the Company, without the approval of Buyer, which shall not be conducted only unreasonably withheld, from and after the date hereof until the Closing, from:
(i) selling, assigning, transferring, mortgaging, pledging, leasing, granting or permitting to exist any Encumbrance on or otherwise disposing of any assets which are material to the Company's business, taken as a whole, as presently conducted, other than with respect to investment and portfolio assets in the ordinary course in all material respects. The Company will use its reasonable efforts to preserve and maintain the business and properties of the Company and the Subsidiaries intact, keep available the services of their employees, and preserve for TelePad and the Buyer the relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives and others having business relations with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entity.business;
(b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on increasing the rates of compensation (including bonuses) payable or prior to become payable to any officer, employee, agent, independent contractor or consultant of the Closing Date, and Company;
(iii) increases not exceeding ten percent per annum to employees made entering into any new, or amending any existing, employment, severance or consulting Contracts or altering its employment practices or the terms and conditions of employment;
(iv) except in the ordinary course of business, the Company will not increaseincurring any obligation, liability or indebtedness, incurring any extraordinary losses, or obligate itself disposing of, canceling, waiving or permitting to increaselapse any rights of material value;
(v) changing in any material respect its accounting methods, the compensation payable principles or to become payable practices (including, without limitation, any changes in depreciation or amortization policies or rates or any changes in any assumptions underlying any method of calculating reserves) other than as required by the Company to any of the directorsa change in GAAP, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare SAP or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.Applicable Law;
(cvi) The Company will furnish to the Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.
(f) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy of any notice from any governmental authority of the revocation, suspension, violation, or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business of the Company or any Subsidiary.
(i) The Company will not issue any capital stock or any warrants, options or other rights to acquire capital stock or securities convertible entering into or exercisable amending or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.
(j) The LLC shall not sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stock, nor grant any right to vote or acquire any of the Company capital stock.
(k) The Company will not enter into terminating any transaction or take any action which individually or in the aggregate Contract that could reasonably be expected to have a Company Material Adverse Effect.;
(lvii) One time prior to splitting, combining, redeeming, repurchasing or reclassifying the Closing Date, within five days after receipt capital stock of a written request from TelePad and the Buyer, the Company and the LLC will update their representations and warranties set forth or declaring, setting aside, making or paying any dividend or other distribution in Article II and III hereof as if such representations and warranties were made as respect of the date capital stock of the Company;
(viii) issuing or selling (or agreeing to issue or sell) any note, debenture, stock, or other security or any options, warrants, conversion or other rights to purchase any such updatesecurities or any securities convertible into or exchangeable for such securities, or granting, or agreeing to grant, any such options;
(ix) amending the certificate of incorporation or by-laws or other charter or organizational documents of the Company;
(x) except in the ordinary course of business, terminating, amending, or executing any material reinsurance, coinsurance or other similar Contract, as ceding or assuming insurer; or
(xi) entering into any Contract to do any of the foregoing.
Appears in 1 contract
Conduct of Company’s Business. The Company Sellers and the LLC Company agree that, ------------------------------- except as Telepad may otherwise grant its prior consent, from and after the date hereof through until the Closing earlier of the Additional Consideration Payment Date or the earlier termination of this AgreementAgreement pursuant to Section 10.01:
(a) The business and operations of the Company and the Subsidiaries will be conducted only in the ordinary course in all material respects. The ; and Sellers and the Company will use its their reasonable efforts to preserve and maintain the business and properties of the Company and the Subsidiaries intactCompany, keep available the services of their employees, and preserve for TelePad and the Buyer Telepad the relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives and others having business relations with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entityCompany.
(b) Except (i) as may be required by existing contracts Contracts or applicable law, (ii) for such obligations or as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made permitted in the ordinary course of businessEmployment Agreements, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fundEmployee Plan. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will not take any action or fail to any action that would result in any breach of a representation, warranty or covenant hereunder or otherwise impede the consummation of the Transactions.
(d) The Company shall, upon reasonable notice, afford the officers, employees, counsel, accountants, financing sources and other authorized representatives of Telepad or any of its Affiliates ("Representatives") reasonable access during normal business hours to its properties, books, contracts, commitments and records and personnel and advisors (who will be instructed by the Company to cooperate) furnish promptly to Telepad all information concerning its business, properties and personnel as Telepad or its Representatives may reasonably request; provided that any review will be conducted in a way that will not interfere unreasonably with the conduct of the Company's business, and provided, further, that no review pursuant to this Section 7.01(d) shall affect or be deemed to modify any representation or warranty made by the Company or any Seller herein.
(e) The Company will furnish to the Buyer Telepad when they become available the Company's unaudited and interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996the Closing Date.
(df) Neither the LLC nor Company or any affiliate of the LLC Subsidiary thereof will enter into any material transaction with the Company or any SubsidiaryAffiliate of the Company or of either Seller, except as otherwise contemplated herebyfor Telepad and its other Subsidiaries.
(eg) The Company will maintain its books and records in all material respects in accordance with prior practicegenerally accepted corporate practice and will cause its Subsidiaries to do so.
(fh) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the its Subsidiaries to do so.
(gi) The Company will provide to the BuyerTelepad, promptly upon receipt thereof, a copy of any notice from any governmental authority Governmental Entity of the revocation, suspension, violation, or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any SubsidiarySubsidiary thereof.
(hj) The Company will notify the Buyer Telepad promptly after learning of the institution or threat of any action against the Company or any Subsidiary in thereof before any courtGovernmental Entity, or any action against the Company or any Subsidiary thereof before any other government authorityGovernment Entity, and notify the Buyer Telepad promptly upon receipt of any administrative or court Governmental Entity order relating to any of the assets or business of the Company or any SubsidiarySubsidiary thereof.
(ik) The Company will not issue any capital stock or any warrants, options or other rights to acquire Purchase Rights regarding Company capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.
(jl) The LLC shall Except for the purchase and sale of the Shares hereunder, the Company not issue, sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stockstock or other securities of the Company, nor grant any right to vote or acquire any Company capital stock or other securities of the Company.
(m) The Company shall not engage in, or enter into any agreement with respect to, or resolve to engage in or to enter into any agreement with respect to, any Major Transaction.
(n) The Company shall furnish to Telepad:
(i) as soon as available, but in the event within 60 days after the end of each fiscal year of the Company, a copy of the consolidated balance sheet of the Company capital stockand its Subsidiaries as at the and of such year and the related consolidated statements of income and retained earnings, changes in stockholders' equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on by the Independent Accountant or other independent certified public accountants of nationally recognized standing acceptable to Telepad;
(ii) as soon as available, but in any event within 60 days after the end of each fiscal year of the Company, a copy of the consolidating balance sheet of the Company and its consolidated Subsidiaries as at the end of such year and the related consolidating statements of income and retained earnings, changes in stockholders' equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, certified by an executive officer of the Company as being fairly stated in all material respects;
(iii) as soon as available, but in any event within 30 days after the end of each of the first three quarterly periods of each fiscal year of the Company, the unaudited consolidated and consolidating balance sheet of the Company and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated and consolidating statements of income and retained earnings, stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by an executive officer of the Company as being fairly stated in all material respects when considered in relation to the consolidated and consolidating financial statements of the Company and its consolidated Subsidiaries (subject to normal year-end audit adjustments); all such financial statements specified in (i), (ii) and (iii) above to be complete and correct in all material respects and to be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein);
(iv) a copy of each report, certificate or other document or information delivered to the Company's lenders, concurrently with the delivery thereof to such lenders, including all annexes or attachments thereto;
(v) as soon as available, but in any event within 30 days after the end of each fiscal month of the Company, a copy of the consolidating balance sheet of the Company and its consolidated Subsidiaries as at the end of each such fiscal month and the related consolidating statement of income, each certified by an executive office of the Company as being fairly stated in all material respects;
(vi) as soon as available, but in any event within 60 days after the Closing Date Closing, the audited consolidated and consolidating balance sheet of the Company and its consolidated Subsidiaries for the fiscal years ended December 31, 1997, December 31, 1996, and December 31, 1995, and the related audited consolidated and consolidating statements of income and retained earnings, stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for each such fiscal year, reported on by the Independent Accountant or other independent certified public accountants of nationally recognized standing acceptable to Telepad, and to be complete and correct in all material respects and to be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods.
(kvii) such other information as Telepad may reasonably request from time to time, including without limitation, any information required to be furnished or filed by Telepad to the SEC or Nasdaq in order to comply with Nasdaq rules and requirements, the requirements of the Securities Act or the Securities Exchange Act.
(o) The Company will not enter into and Sellers agree to provide, and shall cause the Company's Subsidiaries and its and their respective officers and employees to provide, all necessary cooperation in connection with the arrangement of any transaction financing to be consummated contemporaneous with or take at or after the payment of the Additional Consideration and the refinancing of the indebtedness of the Company and its Subsidiaries, including the execution and delivery of any action which individually commercially reasonable commitment and fee letters, term sheets, underwriting or placement agreements, pledge and security documents, other commercially reasonable definitive financing documents, or other reasonably requested certificates or documents, including a certificate of the chief financial officer of the Company with respect to solvency matters, as may be reasonably requested by Telepad. In addition, in conjunction with the aggregate could reasonably obtaining of any such financing, the Company agrees, at the request of Telepad, to call for prepayment or redemption, or to prepay, redeem and/or renegotiate, as the case may be, any then existing indebtedness of the Company or of any Subsidiary, provided that no such prepayment or redemption shall themselves actually be expected to have a Material Adverse Effectmade until contemporaneously with or after the payment of the Additional Consideration.
(lq) One time prior On or before December 31, 1999, the Company's board of directors and appropriate officers of the Company shall take all action necessary or appropriate to amend the Merrill Lynch Simple Retirement Account Plan maintained by the Compaxx xx xs xx xrovide that no further contributions shall be made to such plan subsequent to December 31, 1999. In addition, the Company's board of directors and appropriate officers shall take all action necessary or appropriate to effectuate the termination of such plan and the distribution of the assets of such plan to the Closing Dateplan's participants on or before December 31, within five days after receipt of a written request from TelePad and the Buyer, the Company and the LLC will update their representations and warranties set forth in Article II and III hereof as if such representations and warranties were made as of the date of such update2001.
Appears in 1 contract
Conduct of Company’s Business. The Company and Except as otherwise provided in, contemplated by or permitted by this Agreement, or as set forth in Schedule 5.1, or with the LLC agree that, ------------------------------- from and after prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) between the date hereof through and the Closing Date or Effective Time, the earlier termination of this AgreementCompany shall:
(a) The conduct its business and operations of the Company and the Subsidiaries will be conducted only in the ordinary course in all material respects. The Company will use its reasonable efforts to preserve Ordinary Course of Business and maintain the business and properties of the Company and the Subsidiaries intact, keep available the services of their employees, and preserve for TelePad and the Buyer the relationships of the Company and the Subsidiaries consistent with its employees, suppliers, customers, sales representatives and others having business relations with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entity.past practice;
(b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will furnish to the Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.past practices;
(c) maintain all of its assets in customary repair, order and condition;
(d) use commercially reasonable efforts to preserve its present business organization, retain the services of its present employees and preserve its present relationships with its customers and suppliers;
(e) not alter its capital structure or issue or grant shares (other than pursuant to the exercise of Options), options or other securities (or rights to acquire securities) or make any distributions to its shareholders;
(f) The Company will comply in all material respects with all lawsnot purchase, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy redeem or otherwise acquire any shares of any notice from any governmental authority of the revocation, suspension, violation, capital stock or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business securities of the Company or any Subsidiary.options, warrants, calls or rights to acquire any such shares or other securities, except from former employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service, or take any action to accelerate any vesting provisions of any such shares or securities;
(g) not increase the level of compensation to any officer, director or employee or enter into any new employment or bonus agreement with any such officer, director or employee, unless (i) pursuant to existing agreements or written plans or, (ii) solely with respect to any non-officer employee whose annual compensation as of the date hereof does not exceed $40,000, in the Ordinary Course of Business and consistent with past practice but in no event shall such percentage increase for any employee made pursuant to this clause (ii) exceed the percentage identified on Schedule 5.1(g);
(h) not amend its Articles of Incorporation or Bylaws or other governance documents;
(i) The Company will not issue effect any capital stock merger, consolidation, or business combination or acquire a substantial equity interest in any warrantsbusiness, options corporation, partnership or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.Person;
(j) The LLC shall not adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring or recapitalization of the Company or otherwise permit the corporate existence of the Company to be suspended, lapsed or revoked;
(k) not, directly or indirectly, sell, pledgelease, assignsell and leaseback, transfer mortgage or otherwise encumber or subject to any Lien or otherwise dispose of or encumber any of its properties or assets or any interest therein, other than (i) in the Company capital stockOrdinary Course of Business, nor grant (ii) any right to vote Liens for taxes not yet due and payable or acquire being contested in good faith and (iii) such mechanics' and similar Liens, if any, as do not materially detract from the value of any of the Company capital stock.such properties or assets;
(kl) The Company will not repurchase, prepay or incur any indebtedness or assume, guarantee or endorse any indebtedness of another Person, or make any loans, advances or capital contributions to, or investments in, any other Person;
(m) not make any capital expenditures in excess of $2,500 individually and $20,000 in the aggregate;
(n) not accelerate receivables or delay payables, except in the Ordinary Course of Business;
(o) not enter into into, modify, amend or terminate (i) any transaction Company Contract which if so entered into, modified, amended or take any action which individually or in the aggregate could reasonably be expected to terminated would (A) have a Material Adverse Effect., (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;
(lp) One time prior not, except as required by GAAP, revalue any of its material assets or make any changes in accounting methods, principles or practices;
(q) not (i) settle, pay or discharge, or admit liability or consent to non-monetary relief in respect of any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising in the Ordinary Course of Business or otherwise for an amount in excess of $2,500 individually and $20,000 in the aggregate unless compelled by final, non-appealable court order or other binding order of a Governmental Entity or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(r) not make any payments to, or otherwise engage in any transaction with, an Affiliate of the Company (other than payments of compensation to directors and officers in the Ordinary Course of Business);
(s) not make or rescind any material election relating to Taxes or settle or compromise any material Tax liability or enter into any closing or other agreement with any Tax authority with respect to any material Tax liability, or file 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 Closing Dateassessment or determination of Taxes;
(t) not fail to file any material Tax returns when due, within five days after receipt 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 a written request from TelePad and the BuyerCompany, 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; or
(u) not propose or authorize any of, or commit, resolve or agree to take any of, the Company and the LLC will update their representations and warranties set forth in Article II and III hereof as if such representations and warranties were made as of the date of such updateforegoing actions.
Appears in 1 contract
Conduct of Company’s Business. The Company and During the LLC agree that, ------------------------------- period from and after the date hereof through to the Closing Date or the date, if any, on which this Agreement is earlier termination of this Agreement:
terminated pursuant to its terms (“Pre-Closing Period”), the Company shall, and shall cause each Company Subsidiary to, use commercially reasonable efforts to (a) The business carry on their respective businesses in the usual, regular and operations ordinary course in substantially the same manner as heretofore conducted, (b) consistent with past practices and policies, preserve intact the Company’s and each of the Company and the Subsidiaries will be conducted only in the ordinary course in all material respects. The Company will use its reasonable efforts to preserve and maintain the Subsidiary’s current business and properties of the Company and the Subsidiaries intactorganizations, keep available the services of their employees, respective current officers and employees and preserve for TelePad and the Buyer the their respective relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives suppliers and others having business relations relationships with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entity.
(b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will furnish to the promptly notify Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.
(f) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy of any notice from any governmental authority of the revocation, suspension, violation, event or limitation of the rights under, occurrence that will have or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business of the Company or any Subsidiary.
(i) The Company will not issue any capital stock or any warrants, options or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.
(j) The LLC shall not sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stock, nor grant any right to vote or acquire any of the Company capital stock.
(k) The Company will not enter into any transaction or take any action which individually or in the aggregate could reasonably be expected to have a Company Material Adverse Effect.. In addition, during the Pre-Closing Period, the Company, except as set forth on Schedule 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 Subsidiaries to the Company, nor purchase, redeem or otherwise acquire for consideration any of its capital stock or other securities;
(c) issue or sell any of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any of its capital stock;
(d) borrow or agree to borrow any funds or voluntarily incur or assume, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the ordinary course of business consistent with past practices;
(e) pay, discharge or satisfy any claim or Liability in excess of $25,000 in any one case or $40,000 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 of its assets that are material, individually or in the aggregate, to the business of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices;
(h) acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, any business or any other Person, or otherwise acquire any assets that are material, individually or in the aggregate, to the business of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices;
(i) increase the following amounts payable or to become payable: (i) the salary of any of its directors 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 of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(k) sell, or grant any right to exclusive use of, all or any part of the Company Proprietary Rights;
(l) One time prior enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the Transactions or that could have or could reasonably be expected to have a Company Material Adverse Effect;
(m) amend in any material respect any agreement to which the Company or any Company Subsidiary is a party the amendment of which will have or could reasonably be expected to have a Company Material Adverse Effect;
(n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $35,000 or (ii) the waiver, release, transfer or lapse of which would have or would reasonably be expected to have a Company Material Adverse Effect;
(o) take any action that would materially decrease the Closing DateWorking Capital except that the Company may provide, within five days after receipt in its Estimated Closing Balance Sheet, for the payment of a written request from TelePad Transaction Expenses and thereby reduce 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 Buyer, consolidated financial statements of the Company and the LLC will update their representations and warranties set forth Company Subsidiaries comply with GAAP;
(q) enter into any sale/leaseback or similar transaction; or
(r) agree or otherwise commit, whether in Article II and III hereof as if such representations and warranties were made as of the date of such updatewriting or otherwise, to take any action described in this Section 5.1.
Appears in 1 contract
Conduct of Company’s Business. The Company and Except as otherwise provided in, contemplated by or permitted by this Agreement, or as set forth in Schedule 5.1, or with the LLC agree that, ------------------------------- from and after prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) between the date hereof through and the Closing Date or Effective Time, the earlier termination of this AgreementCompany shall:
(a) The conduct its business and operations of the Company and the Subsidiaries will be conducted only in the ordinary course in all material respects. The Company will use its reasonable efforts to preserve Ordinary Course of Business and maintain the business and properties of the Company and the Subsidiaries intact, keep available the services of their employees, and preserve for TelePad and the Buyer the relationships of the Company and the Subsidiaries consistent with its employees, suppliers, customers, sales representatives and others having business relations with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or any other entity.past practice;
(b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will furnish to the Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.past practices;
(c) maintain all of its assets in customary repair, order and condition;
(d) use commercially reasonable efforts to preserve its present business organization, retain the services of its present employees and preserve its present relationships with its customers and suppliers;
(e) not alter its capital structure or issue or grant shares (other than pursuant to the exercise of Options), options or other securities (or rights to acquire securities) or make any distributions to its shareholders;
(f) The Company will comply in all material respects with all lawsnot purchase, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy redeem or otherwise acquire any shares of any notice from any governmental authority of the revocation, suspension, violation, capital stock or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business securities of the Company or any Subsidiary.options, warrants, calls or rights to acquire any such shares or other securities, except from former employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service, or take any action to accelerate any vesting provisions of any such shares or securities;
(g) not increase the level of compensation to any officer, director or employee or enter into any new employment or bonus agreement with any such officer, director or employee, unless (i) pursuant to existing agreements or written plans or, (ii) solely with respect to any non-officer employee whose annual compensation as of the date hereof does not exceed $40,000, in the Ordinary Course of Business and consistent with past practice but in no event shall such percentage increase for any employee made pursuant to this clause (ii) exceed the percentage identified on Schedule 5.1(g);
(h) not amend its Articles of Incorporation or Bylaws or other governance documents;
(i) The Company will not issue effect any capital stock merger, consolidation, or business combination or acquire a substantial equity interest in any warrantsbusiness, options corporation, partnership or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.Person;
(j) The LLC shall not adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring or recapitalization of the Company or otherwise permit the corporate existence of the Company to be suspended, lapsed or revoked;
(k) not, directly or indirectly, sell, pledgelease, assignsell and leaseback, transfer mortgage or otherwise encumber or subject to any Lien or otherwise dispose of or encumber any of its properties or assets or any interest therein, other than (i) in the Company capital stockOrdinary Course of Business, nor grant (ii) any right to vote Liens for taxes not yet due and payable or acquire being contested in good faith and (iii) such mechanics’ and similar Liens, if any, as do not materially detract from the value of any of the Company capital stock.such properties or assets;
(kl) The Company will not repurchase, prepay or incur any indebtedness or assume, guarantee or endorse any indebtedness of another Person, or make any loans, advances or capital contributions to, or investments in, any other Person;
(m) not make any capital expenditures in excess of $2,500 individually and $20,000 in the aggregate;
(n) not accelerate receivables or delay payables, except in the Ordinary Course of Business;
(o) not enter into into, modify, amend or terminate (i) any transaction Company Contract which if so entered into, modified, amended or take any action which individually or in the aggregate could reasonably be expected to terminated would (A) have a Material Adverse Effect., (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;
(lp) One time prior not, except as required by GAAP, revalue any of its material assets or make any changes in accounting methods, principles or practices;
(q) not (i) settle, pay or discharge, or admit liability or consent to non-monetary relief in respect of any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising in the Ordinary Course of Business or otherwise for an amount in excess of $2,500 individually and $20,000 in the aggregate unless compelled by final, non-appealable court order or other binding order of a Governmental Entity or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(r) not make any payments to, or otherwise engage in any transaction with, an Affiliate of the Company (other than payments of compensation to directors and officers in the Ordinary Course of Business);
(s) not make or rescind any material election relating to Taxes or settle or compromise any material Tax liability or enter into any closing or other agreement with any Tax authority with respect to any material Tax liability, or file 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 Closing Dateassessment or determination of Taxes;
(t) not fail to file any material Tax returns when due, within five days after receipt 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 a written request from TelePad and the BuyerCompany, 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; or
(u) not propose or authorize any of, or commit, resolve or agree to take any of, the Company and the LLC will update their representations and warranties set forth in Article II and III hereof as if such representations and warranties were made as of the date of such updateforegoing actions.
Appears in 1 contract
Conduct of Company’s Business. The Company and the LLC agree that, ------------------------------- from and after From the date hereof of this Agreement through the Closing Date or Closing, the earlier termination of this Agreement:
Company (a) The shall maintain its existence and carry on its business and operations of the Company and the Subsidiaries will be conducted only in the ordinary course in Ordinary Course and, to the extent consistent therewith, (b) shall use all material respects. The Company will use its reasonable efforts to preserve and maintain the business and properties of the Company and the Subsidiaries intact, keep available the services of their employees, its current officers and employees and preserve for TelePad its business relationships to the end that its goodwill and ongoing business shall continue at the Buyer the relationships time of the Company Closing without material change and (c) shall preserve the Subsidiaries with its employeesCompany’s status as a REIT within the meaning of the Code and shall not take or omit to take any action, suppliersor permit any status to exist, customersthat would likely jeopardize, sales representatives and others having business relations with them. Notwithstanding the foregoingor is inconsistent with, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc., to the Stockholders or Company’s status as a REIT for any other entity.
(b) Except (i) as may be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to the Closing Date, and (iii) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fundperiod. Notwithstanding the foregoing, the Company shall be entitled to hire employees in enter into hedging transactions at the ordinary course request of business.
(c) The Company will furnish to Parent, at the Buyer when they become available interim unaudited consolidated financial statements Company’s sole cost and expense, as set forth on Schedule 4.7 of the Company for periods ending after October 31, 1996.
(d) Neither Letter. 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 could reasonably be expected to result in the LLC nor any affiliate Company being unable to deliver the certificate described in Section 5.3(e). Without limiting the generality of the LLC will enter into any material transaction with foregoing, during the Company period from the date of this Agreement until the earlier of the termination of this Agreement or any Subsidiarythe Effective Time, except as otherwise contemplated hereby.by this Agreement or as set forth on Schedule 4.7 of the Company Letter, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent, subject to the fiduciary duties of CMSLP to the beneficiaries of the trust securitizations of which CMSLP acts as special servicer or in any other capacity:
(ei) The adopt any amendment to its articles or certificate of incorporation or by-laws or other comparable organizational documents;
(ii) 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 will maintain its books Common Stock upon the exercise of stock options or vesting of restricted stock outstanding on the date hereof pursuant to the Company stock option and records in all material respects deferred compensation plans in accordance with prior practice.their terms, the conversion of any convertible securities outstanding as of the date hereof and the issuance of shares of the Company Common Stock upon any exercise of the Warrant;
(fiii) The Company will comply (x) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in all material respects with all lawsrespect of, rules any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than (A) dividends and regulations applicable to it and it will cause the other distributions by Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy of any notice from any governmental authority of the revocation, suspension, violation, or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure Company to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or its wholly-owned Subsidiaries, (B) annual dividends, in an aggregate amount of no more than $100,000, paid to the preferred shareholders of CBO REIT II, Inc. and (C) the regular accumulation or payment of dividends on the Preferred Stock, (y) other than in the case of any Subsidiary.
(h) The Company will notify the Buyer promptly after learning wholly-owned Subsidiary of the institution Company, split, combine or threat reclassify any of its capital stock or issue or authorize the issuance of any action against the Company 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 Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt shares of any administrative or court order relating to any of the assets or business capital stock of the Company or any Subsidiary.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;
(iiv) The Company will not issue 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 capital stock other manner, any business or any warrantscorporation, options 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, other than any securities purchased by CRIIMI MAE Securities Trading Co., in accordance with the parameters set forth on Schedule 4.7(iv) of the Company Letter;
(v) 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;
(vi) 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 capital stock any debt securities of the Company, guarantee or otherwise support any debt securities convertible or make any loans or advances to any other Person, or enter into or exercisable or exchangeable for any arrangement having the Company capital stock, nor will the Company authorize or agree to do economic effect of any of the foregoing foregoing, other than indebtedness in a maximum aggregate principal amount not exceeding $5 million;
(vii) alter (through merger, liquidation, reorganization, restructuring or cause in any Subsidiary to do any other fashion) the corporate structure or ownership of the foregoing with respect to such Subsidiary's capital stock.
(j) The LLC Company or any wholly-owned Subsidiary of the Company, except that the Company shall not sellliquidate, pledge, assign, transfer dissolve or otherwise dispose of or encumber any all interests in the Subsidiaries and Company Business Entities set forth on Schedule 4.7(vii) of the Company capital stock, nor grant any right Letter prior to vote or acquire any of the Company capital stock.Closing Date;
(kviii) The Company will not enter into 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 transaction such changes);
(ix) (A) make or take rescind any action which material Tax election or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy in relation to Taxes;
(x) 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 could aggregate, would reasonably be expected to have a Material Adverse Effect.;
(lxi) One time prior take any action that would reasonably be expected to result in any of the Closing Date, within five days after receipt of a written request from TelePad and the Buyer, the Company and the LLC will update their representations and warranties conditions set forth in Article II and III hereof Section 5.1 or 5.3 not being satisfied in a timely manner as if contemplated by this Agreement; or
(xii) except as may be required by Law or as set forth on Schedule 4.7(xii) of the Company Letter, 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 representations and warranties were made 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;
(xiii) settle or compromise any material litigation or waive, release or assign any material rights or claims;
(xiv) 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), including the Termination Agreement or, as of the date of such updatethis Agreement, is an employee, officer or director of the Company or any Subsidiary of the Company;
(xv) 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;
(xvi) (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;
(xvii) fail to use all reasonable efforts to comply or remain in compliance with all material terms and provisions of any Contract;
(xviii) 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
(xix) except as specified in the second sentence of this Section 4.7, enter into new hedging arrangements or terminate or modify existing hedging arrangements.
Appears in 1 contract
Samples: Merger Agreement (Criimi Mae Inc)
Conduct of Company’s Business. The Company and the LLC agree that, ------------------------------- from and after Between the date hereof through and the Closing Date or the date, if any, on which this Agreement is earlier termination of this Agreement:
terminated pursuant to its terms (“Pre-Closing Period”), the Company shall, (a) The carry on its business and operations of the Company and the Subsidiaries will be conducted only in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all material respects. The Company will use its commercially reasonable efforts consistent with past practices and policies to preserve and maintain intact the Company’s current business and properties of the Company and the Subsidiaries intactorganizations, keep available the services of their employees, its current officers and employees and preserve for TelePad and the Buyer the its relationships of the Company and the Subsidiaries with its employees, suppliers, customers, sales representatives suppliers and others having business relations relationships with them. Notwithstanding the foregoing, the Company may, prior to the Closing, transfer all of the capital stock or assets of its subsidiary, United World Communications, Inc.it, to the Stockholders or any other entity.
(b) Except (i) as may end that the Company’s goodwill and ongoing business be required by existing contracts or applicable law, (ii) for such obligations as will be satisfied in full on or prior to unimpaired at the Closing Date, and (iiib) increases not exceeding ten percent per annum to employees made in the ordinary course of business, the Company will not increase, or obligate itself to increase, the compensation payable or to become payable by the Company to any of the directors, officers or employees of the Company or the Subsidiaries or incur any additional obligations with respect to any such directors, officers or employees or take any action with respect to the grant or increase of severance or termination pay payable after the Closing Date or institute an increase in or otherwise amend any deferred compensation, insurance, retirement, medical, disability, welfare or other employee benefit plan, agreement, trust or fund. Notwithstanding the foregoing, the Company shall be entitled to hire employees in the ordinary course of business.
(c) The Company will furnish to the promptly notify Buyer when they become available interim unaudited consolidated financial statements of the Company for periods ending after October 31, 1996.
(d) Neither the LLC nor any affiliate of the LLC will enter into any material transaction with the Company or any Subsidiary, except as otherwise contemplated hereby.
(e) The Company will maintain its books and records in all material respects in accordance with prior practice.
(f) The Company will comply in all material respects with all laws, rules and regulations applicable to it and it will cause the Subsidiaries to do so.
(g) The Company will provide to the Buyer, promptly upon receipt thereof, a copy of any notice from any governmental authority of the revocation, suspension, violation, event or limitation of the rights under, occurrence which will have or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend, or limit the rights under) any Permit held by the Company or any Subsidiary.
(h) The Company will notify the Buyer promptly after learning of the institution or threat of any action against the Company or any Subsidiary in any court, or any action against the Company or any Subsidiary before any other government authority, and notify the Buyer promptly upon receipt of any administrative or court order relating to any of the assets or business of the Company or any Subsidiary.
(i) The Company will not issue any capital stock or any warrants, options or other rights to acquire capital stock or securities convertible into or exercisable or exchangeable for any the Company capital stock, nor will the Company authorize or agree to do any of the foregoing or cause any Subsidiary to do any of the foregoing with respect to such Subsidiary's capital stock.
(j) The LLC shall not sell, pledge, assign, transfer or otherwise dispose of or encumber any of the Company capital stock, nor grant any right to vote or acquire any of the Company capital stock.
(k) The Company will not enter into any transaction or take any action which individually or in the aggregate could reasonably be expected to have a Company Material Adverse Effect.. In addition, during the Pre-Closing Period, the Company, except as set forth on Schedule 5.1, shall not:
(a) amend its Organizational Documents;
(b) declare or pay any dividends or distributions on the Company’s outstanding of capital stock nor purchase, redeem or otherwise acquire for consideration any of the Company’s capital stock or other securities;
(c) issue or sell any of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any of its capital stock;
(d) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the 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 the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the Company Balance Sheet, or 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 of its assets which are material, individually or in the aggregate, to the business of the Company, except in the ordinary course of business consistent with past practices;
(h) acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, any business or any other Person, or otherwise acquire any assets which are material, individually or in the aggregate, to the business of the Company, except in the ordinary course of business consistent with past practices;
(i) increase the following amounts payable or to become payable: (i) the salary of any of its directors 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, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices;
(j) dispose of, permit to lapse, or otherwise fail to preserve the rights of the Company 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 of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(k) sell, or grant any right to exclusive use of, all or any part of the Company Proprietary Rights;
(l) One time prior enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the Transactions or that would have or could reasonably be expected to have a Company Material Adverse Effect;
(m) amend in any material respect any agreement to which the Company is a party the amendment of which will have or could reasonably be expected to have a Company Material Adverse Effect;
(n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $10,000 or (ii) the waiver, release, transfer or lapse of which would have or could reasonably be expected to have a Company Material Adverse Effect;
(o) take any action that would materially decrease the Closing DateWorking Capital;
(p) make any change in any method of accounting or accounting practice other than changes required to be made so that the Company’s financial statements comply with GAAP;
(q) enter into any sale/leaseback or similar transaction; or
(r) agree or otherwise commit, within five days after receipt of a written request from TelePad and the Buyerwhether in writing or otherwise, the Company and the LLC will update their representations and warranties set forth to take any action described in Article II and III hereof as if such representations and warranties were made as of the date of such updatethis Section 5.1.
Appears in 1 contract
