Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, without Parent's prior written consent (which consent or denial shall not be unreasonably delayed) and except as otherwise contemplated or authorized by this Agreement, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; (ii) the Company and its Subsidiaries shall use commercially reasonable efforts to preserve intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has material business relations; (iii) the Company and its Subsidiaries will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act; (iv) the Company will not take any action or fail to take any action, the taking of which or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for purposes of effectuating the Divestiture (as hereinafter defined), and dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company (including, without limitation, any direct or indirect distributions of or in respect of amounts received in connection with any sale, transfer or other disposition of any of the Unacquired Assets);
Appears in 1 contract
Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that that, except for actions taken to implement this Agreement and the transactions contemplated hereby and except as set forth in the Company Disclosure Letter, between the date of this Agreement and the Effective Time, without Parent's prior written consent (which consent or denial unless Parent shall not be unreasonably delayed) and except as otherwise contemplated or authorized by this Agreementagree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; , (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has material significant business relations; , (iii) the Company and its Subsidiaries shall use all commercially reasonable efforts on a basis consistent with past practice to continue to provide wireless cable television services to the Company's subscriber base and (iv) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act; (iv) the Company will not take any action or fail to take any action, the taking of which or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns.
(b) The Company covenants and agrees that that, except for actions taken to implement this Agreement and the transactions contemplated hereby, between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for purposes of effectuating the Divestiture (as hereinafter defined), and dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company Company, (includingii) split, without limitationcombine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, any direct or indirect distributions in lieu of or in respect substitution for shares of amounts received its capital stock, (iii) except as set forth in connection with the Company Disclosure Letter, repurchase or otherwise acquire any saleshares of its capital stock, transfer (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other disposition than the issuance of shares of Company Common Stock upon the exercise of Company Options or Company Warrants outstanding as of the date of this Agreement, (v) willfully take any action that would make the Company's representations and warranties set forth in Article III not true and correct in all material respects, or (vi) take any action that would, or could reasonably be expected to, result in any of the Unacquired Assetsconditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that, except for actions taken to implement this Agreement and the transactions contemplated hereby, between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) except as set forth in the Company Disclosure Letter, incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $50,000 made in the ordinary course of business consistent with past practice);; (iv) except as set forth in the Company Disclosure Letter, merge or consolidate with any other entity in any transaction, or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $100,000 or greater; (v) change its accounting policies except as required by GAAP; (vi) make any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Sprint Corp)
Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with SECTION 8.1, without Parent's prior written consent unless Parent shall otherwise expressly agree in writing (which consent or denial request shall not be unreasonably withheld or delayed) and except as otherwise contemplated or authorized by this Agreement, ): (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; (ii) the Company and its Subsidiaries shall use commercially its reasonable best efforts to preserve intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors and other persons with which the Company or its Subsidiaries has material business relations; (iii) the Company and its Subsidiaries will comply in all material respects with all Material Contracts and applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act; and (iv) the Company will not take and its Subsidiaries shall cause to be provided all notices, assurances and support required by any action Material Contract relating to any Company Intellectual Property in order to ensure that no condition under such Material Contract occurs that could result in, or fail to take could increase the likelihood of, (A) any action, the taking of which transfer or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of disclosure by the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends computer source code owned or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including licensed by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries included among the Company's Intellectual Property ("COMPANY SOURCE CODE") or (B) a release from any escrow of any Company Source Code that has been deposited or is required to be deposited in filing their Tax Returnsescrow under the terms of any Material Contract.
(b) The Company covenants and agrees that that, between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with SECTION 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which request shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for purposes of effectuating dividends payable to the Divestiture (as hereinafter defined), and dividends Company by a wholly owned Subsidiary of the Company, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase, redeem or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement and (B) the exercise of warrants outstanding as of the date of this Agreement, (v) award or grant, or authorize or propose the award or grant of any Company Options; (vi) modify or adjust any outstanding options or other rights to acquire shares of Company Common Stock (including the acceleration of any vesting schedule not otherwise provided for in any Company Stock Option Plans) or (vii) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in ARTICLE VII not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective Time or the termination of this Agreement in accordance with SECTION 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which agreement shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person or mortgage or pledge any of its assets or properties, other than in connection with (A) existing lines of credit or (B) leasing contracts entered into in the ordinary course of business; (iii) make any loans or advances to, or investments in (other than as described in the SEC Reports and consistent with past practice), to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries and other than advances of ordinary business expenses or to employees in the ordinary course of business consistent with past practice in principal amounts of not more than $10,000; (iv) merge or consolidate with any other entity in any transaction, or sell any business or assets other than in the ordinary course of business consistent with past practices; (v) change its accounting policies except as required by GAAP or applicable Law; (vi) make any change in employment terms for any of its directors or officers, except as expressly provided in this Agreement; (vii) alter, amend or create any obligations with respect to compensation, severance, loans, deferred compensation, benefits, change-of-control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries or enter into any new, or amend any existing, employment agreements, except (A) as required by applicable Law, (B) severance agreements for non-executive officers containing terms consistent with the Company's policies and practices as of the date hereof or (C) which will not result in material costs to the Company; (viii) make any change to the Company Benefit Plans, except (A) as required by applicable Law, (B) renewals and adjustments made in the ordinary course of business and consistent with past practices or another wholly owned Subsidiary (C) which will not result in material costs to the Company; (ix) amend or cancel or agree to the amendment or cancellation of any Material Contract; (x) pay, loan or advance any amount, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the Company (includingwages, without limitationsalary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any direct or indirect distributions of or in respect of amounts received in connection with any saleits directors, transfer or other disposition of any of the Unacquired Assets);officers, employees
Appears in 1 contract
Conduct of the Business Pending the Merger. 4.1 Conduct of Business of the Company. Except as set forth on Schedule 4.1 or as otherwise expressly permitted by this Agreement or as Parent may otherwise consent to or approve in writing, which consent shall not be unreasonably withheld or delayed (ait being understood and agreed that a delay of two (2) The Business Days or less shall not be deemed unreasonable) on and after the date hereof and prior to the Effective Time, the Company and its Subsidiaries shall operate in the Ordinary Course of Business and, to the extent consistent therewith, use commercially reasonable efforts consistent with prudent business practices to (i) preserve intact its current business organization in all material respects, (ii) keep available the services of its current officers and other key employees and (iii) preserve its relationships with those Persons having business dealings with it, including vendors and customers. Furthermore, the Company covenants that, from and agrees after the date hereof, unless Parent shall otherwise expressly consent in writing, which consent shall not be unreasonably withheld or delayed (it being understood and agreed that between a delay of two (2) Business Days or less shall not be deemed unreasonable), the Company and each of its Subsidiaries shall use its commercially reasonable efforts to: (x) keep in full force and effect insurance comparable in amount and scope of coverage to insurance now carried by it, (y) follow its currently contemplated Project installation schedule as reflected in the business plan of the Company delivered to Parent under cover of letter dated October 21, 2009 (the “Business Plan”) and (z) pay all accounts payable and other obligations in the Ordinary Course of Business consistent with the provisions of this Agreement, except if the same are contested in good faith, and, in the case of the failure to pay any material accounts payable or other obligations which are contested in good faith, only after consultation with Parent. Without limiting the generality of the foregoing, during the period from the date of this Agreement and to the Effective Time, without Parent's prior written consent neither the Company nor any of its Subsidiaries shall:
(which consent a) (i) declare, set aside or denial shall not be unreasonably delayedpay any dividends on, or make any other distributions in respect of, any of its Units or any other equity interests to any Person other than the Company or one of its Subsidiaries, (ii) and split, combine or reclassify any of its Units or any other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its Units or any other equity interests, except for issuances of capital stock or other equity interests upon the exercise of options outstanding as of the date hereof in accordance with their present terms, (iii) except as expressly contemplated by this Agreement, purchase, redeem or otherwise acquire any Units or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (iv) make any other actual, constructive or deemed distribution in respect of any Units or other equity interests or otherwise make any payments to Unitholders in their capacity as such;
(b) except as set forth in Schedule 4.1(b), issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any Units, any other voting securities or other equity interests or any securities convertible into, or any rights, warrants or options to acquire, any such Units, voting securities or other equity interests or convertible securities except in connection with the exercise of the Warrants;
(c) amend its limited liability company operating agreement, certificate of incorporation or bylaws or organizational documents;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of any business or any Person;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets other than in the Ordinary Course of Business or as contemplated by the Business Plan;
(f) other than as set forth in the Business Plan and intercompany Indebtedness, incur any Indebtedness for borrowed money or authorized issue any debt securities, make any loans, advances (other than routine travel and business expense advances) or capital contributions to, or investments in, any Person, except in the Ordinary Course of Business and in amounts not to exceed $500,000 or with respect to module purchases in amounts not to exceed $500,000;
(g) assume, guarantee or endorse the Indebtedness of any other Person (other than a Subsidiary of the Company);
(h) take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Merger not being satisfied, or that would impair the ability of any of the Parties to consummate the Merger in accordance with the terms hereof or delay such consummation;
(i) make any capital expenditure other than for Projects in the Ordinary Course of Business or in an amount which would cause (i) the aggregate capital expenditures during calendar year 2009 to exceed the capital expenditures contemplated by the Business Plan or (ii) the aggregate capital expenditures during any month thereafter to exceed $500,000;
(i) make any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement; (ii) adopt any material accounting method that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods; (iii) file any material amended Tax Returns or claims for Tax refunds; (iv) enter into any closing agreement related to any material Tax; (v) surrender any material Tax claim, audit or assessment; (vi) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability surrendered; (vii) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment; (viii) settle or resolve any material Tax controversy; or (ix) take or omit to take any other action, if any such action or omission would have the effect of materially increasing the Tax liability or reducing any Tax asset of the Company or any of its Subsidiaries;
(k) except as required under an existing Plan or as contemplated by this Agreement, (i) grant or commit to grant any employee, officer or director any increase in wages, bonus, severance, profit sharing, retirement, insurance or other direct compensation or benefits (other than (A) an increase in compensation or benefits in the business Ordinary Course of Business for any individual other than a director of the Company and its Subsidiaries shall be conducted only inor (B) in accordance with the present terms of a contract entered into prior to the date of this Agreement), and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; (ii) amend or terminate any Plan, except to the Company and its Subsidiaries shall use commercially reasonable efforts extent necessary to preserve intact their business organizationscomply with applicable Law, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has material business relations; (iii) the Company and establish any new compensation or benefit plan or arrangement, or (iv) enter into any employment, consulting, retention, termination or severance (with payments in excess of $25,000 per agreement), or collective bargaining agreement;
(l) revalue any of its Subsidiaries will comply assets or liabilities in all any material respects with all applicable Laws and regulations wherever its business is conductedrespect, including, without limitation, writing down the timely filing value of all reports, forms inventory or writing-off notes or accounts receivable other documents with the SEC required pursuant to the Securities Act or the Exchange Act; (iv) the Company will not take any action or fail to take any action, the taking of which or the failure of which to take would have, either individually or than in the aggregate, a material adverse impact on the assets Ordinary Course of Business or financial condition of the Company as reflected on the balance sheet of the Company required by GAAP;
(m) except as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereofSchedule 4.1(m); (v) , enter into any contract or agreement reasonably expected to involve payments to or by the Company will continue to operate its properties (including by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit or any of its Subsidiaries toin excess of $500,000 per annum, other than in the Ordinary Course of Business, or amend in any material respect any of the Material Contracts other than (i) declare in the Ordinary Course of Business, (ii) with respect to module purchases in amounts not to exceed $500,000, (iii) with respect to rooftop lease transactions with real estate investment trusts in amounts not to exceed $500,000 or pay (iv) photovoltaic pipeline acquisitions in amounts up to $500,000;
(n) except as set forth in Schedule 4.1(n), pay, discharge or satisfy any dividends on material claims, material liabilities or make material obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other distributions (whether than the payment, discharge or satisfaction in cashthe Ordinary Course of Business of claims, stock obligations or property) liabilities reflected or reserved against in respect the Balance Sheet or incurred in the Ordinary Course of Business since the date of the Balance Sheet or the settlement of currently existing litigation or contract dispute matters resulting in payment by the Company and/or any of its capital stockSubsidiaries in amounts up to $500,000;
(o) settle or compromise any pending or threatened suit, except for purposes of effectuating the Divestiture (as hereinafter defined), and dividends by a wholly owned Subsidiary of the Company action or claim relating to the transactions contemplated hereby;
(p) enter into any agreement or arrangement that would limit or restrict the Surviving Company and its Affiliates (including Parent) or another wholly owned Subsidiary any successor thereto, from engaging or competing in any line of the Company (including, without limitation, any direct or indirect distributions of business or in respect of amounts received in connection with any salegeographic area; or
(q) authorize, transfer or other disposition of commit or agree to take, any of the Unacquired Assets);foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Memc Electronic Materials Inc)
Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, without Parent's prior written consent unless Parent shall otherwise expressly agree in writing (which consent or denial request shall not be unreasonably withheld or delayed) and except as otherwise contemplated or authorized by this Agreement, ): (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; (ii) the Company and its Subsidiaries shall use commercially its reasonable best efforts to preserve intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors and other persons with which the Company or its Subsidiaries has material business relations; (iii) the Company and its Subsidiaries will comply in all material respects with all Material Contracts and applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act; and (iv) the Company will not take and its Subsidiaries shall cause to be provided all notices, assurances and support required by any action Material Contract relating to any Company Intellectual Property in order to ensure that no condition under such Material Contract occurs that could result in, or fail to take could increase the likelihood of, (A) any action, the taking of which transfer or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of disclosure by the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends computer source code owned or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including licensed by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries included among the Company’s Intellectual Property (“Company Source Code”) or (B) a release from any escrow of any Company Source Code that has been deposited or is required to be deposited in filing their Tax Returnsescrow under the terms of any Material Contract.
(b) The Company covenants and agrees that that, between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which request shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for purposes of effectuating dividends payable to the Divestiture (as hereinafter defined), and dividends Company by a wholly owned Subsidiary of the Company, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase, redeem or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement and (B) the exercise of warrants outstanding as of the date of this Agreement, (v) award or grant, or authorize or propose the award or grant of any Company Options; (vi) modify or adjust any outstanding options or other rights to acquire shares of Company Common Stock (including the acceleration of any vesting schedule not otherwise provided for in any Company Stock Option Plans) or (vii) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VII not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which agreement shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person or mortgage or pledge any of its assets or properties, other than in connection with (A) existing lines of credit or (B) leasing contracts entered into in the ordinary course of business; (iii) make any loans or advances to, or investments in (other than as described in the SEC Reports and consistent with past practice), to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries and other than advances of ordinary business expenses or to employees in the ordinary course of business consistent with past practice in principal amounts of not more than $10,000; (iv) merge or consolidate with any other entity in any transaction, or sell any business or assets other than in the ordinary course of business consistent with past practices; (v) change its accounting policies except as required by GAAP or applicable Law; (vi) make any change in employment terms for any of its directors or officers, except as expressly provided in this Agreement; (vii) alter, amend or create any obligations with respect to compensation, severance, loans, deferred compensation, benefits, change-of-control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries or enter into any new, or amend any existing, employment agreements, except (A) as required by applicable Law, (B) severance agreements for non-executive officers containing terms consistent with the Company’s policies and practices as of the date hereof or (C) which will not result in material costs to the Company; (viii) make any change to the Company Benefit Plans, except (A) as required by applicable Law, (B) renewals and adjustments made in the ordinary course of business and consistent with past practices or another wholly owned (C) which will not result in material costs to the Company; (ix) amend or cancel or agree to the amendment or cancellation of any Material Contract; (x) pay, loan or advance any amount, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants (other than the payment of regular compensation, regular directors’ fees or reimbursement of reasonable expenses in the ordinary course of business, consistent with past practice) or sell, transfer or lease any properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement with, any of its officers or directors or any “affiliate” or “associate” of any of its officers or directors; (xi) form or commence the operations of any business or any corporation, partnership, joint venture, business association or other business organization or division thereof, (xii) make any tax election or settle or compromise any tax liability of more than $100,000 except as required by Law; or (xiii) pay, discharge, settle or satisfy any claims litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) involving amounts in excess of $100,000 in the aggregate; (xiv) dispose of or permit to lapse any rights to the use of any Company Intellectual Property, or dispose of or disclose to any person other than representatives of Parent any Company Intellectual Property not theretofore a matter of public knowledge; (xv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without reasonable advance notice to Parent; (xvi) enter into any agreement, understanding or commitment that restrains, limits or impedes the ability of the Company to compete with or conduct any business or line of business; (xviii) except in each case in the ordinary course of business consistent with past practice or with the prior written consent of Parent (which shall not be unreasonably withheld or delayed), discharge or satisfy any lien or encumbrance or pay any obligation or liability (absolute or contingent) other than current liabilities or obligations under contracts existing on the date hereof or thereafter entered into in the ordinary course of business, and commitments under leases existing on the date hereof or thereafter incurred in the ordinary course of business; or (xix) permit or cause any Subsidiary of the Company (including, without limitation, any direct to do or indirect distributions of or in respect of amounts received in connection with any sale, transfer or other disposition of agree to do any of the Unacquired Assets);foregoing. In connection with the continued operation of the Company and its Subsidiaries between the date hereof and the Effective Time, the Company will confer in good faith on a regular and frequent basis with one or more representatives of Parent designated to the Company regarding operational matters and the general status of ongoing operations promptly and will notify Parent of any event or occurrence that has had or may reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Tcsi Corp)
Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between During the period from the date of this Agreement and continuing until the Effective Time, without Parent's prior written consent (which consent or denial Paligent agrees as to itself and the Paligent Subsidiaries, that Paligent shall not, and shall cause the Paligent Subsidiaries not be unreasonably delayed) and except as otherwise to, engage in any business whatsoever other than in connection with the consummation of the transactions contemplated or authorized by this Agreement, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice; (ii) the Company and its Subsidiaries shall use commercially reasonable efforts to preserve intact their its business organizationsand assets, to keep available maintain its assets in good operating condition and repair (ordinary wear and tear excepted), retain the services of their current officers and its officers, employees and independent contractors and use reasonable commercial efforts to keep in full force and effect liability insurance and bonds comparable in amount and scope of coverage to that currently maintained with respect to its business, unless, in any case, IFL consents otherwise in writing.
(b) During the period from the date of this Agreement and continuing until the Effective Time, IFL agrees that it shall carry on its business only in the ordinary course of business consistent with past practice, use commercially reasonable efforts to preserve intact its business and assets, maintain its assets in good operating condition and repair (ordinary wear and tear excepted), maintain its rights and franchises with respect to its business, retain the current services of its officers, employees and independent contractors and maintain the relationships of the Company and its Subsidiaries with customers, suppliers and others having business dealings with it, and use reasonable commercial efforts to keep in full force and effect liability insurance and bonds comparable in amount and scope of coverage to that currently maintained with respect to its business, unless, in any case, Paligent consents otherwise in writing; provided that IFL may take any and all of the actions listed in Schedule 5.01(b) of the IFL Disclosure Schedules at any time prior to or after the date of this Agreement without the consent of Paligent.
(c) During the period from the date of this Agreement and continuing until the Effective Time, each of IFL and Paligent agrees as to itself and, with respect to Paligent, the Paligent Subsidiaries, respectively, that except as expressly contemplated or permitted by this Agreement, as disclosed in Section 5.01(c) of the IFL Disclosure Schedule or the Paligent Disclosure Schedule, as applicable, or to the extent that the other persons with which party shall otherwise consent in writing:
(i) It shall not amend or propose to amend its certificate of incorporation or by-laws or equivalent organizational documents except as contemplated in this Agreement.
(ii) It shall not, nor in the Company case of Paligent shall it permit the Paligent Subsidiaries to, issue, deliver, sell, redeem, acquire, authorize or propose to issue, deliver, sell, redeem, acquire or authorize, any shares of its Subsidiaries has material business relations; capital stock of any class or any securities convertible into, or any rights, warrants or options to acquire, any such shares or convertible securities or other ownership interest, provided that: (1) Paligent shall be permitted to issue the shares of Paligent Common Stock to be issued to IFL stockholders hereunder, (ii) IFL shall be permitted to issue options to purchase shares of IFL Common Stock such that options to purchase no more than 2,500,000 shares of IFL Common Stock under the IFL 2006 Equity Compensation Plan shall be outstanding immediately prior to the Closing Date and (3) each party shall be permitted to issue shares of its common stock pursuant to the exercise of stock options, warrants and other convertible securities outstanding as of the date hereof and listed on the IFL Disclosure Schedule or the Paligent Disclosure Schedule, as the case may be.
(iii) It shall not, nor in the Company and its case of Paligent shall it permit any of the Paligent Subsidiaries will comply in all material respects with all applicable Laws and regulations wherever its business is conductedto, includingnor shall it propose to: (i) declare, without limitationset aside, the timely filing of all reports, forms make or pay any dividend or other documents distribution, payable in cash, stock, property or otherwise, with the SEC required pursuant respect to any of its capital stock or (ii) except with respect to the Securities Act Reverse Stock Split, reclassify, combine, split, subdivide or the Exchange Actredeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; provided, however, that each wholly-owned subsidiary may declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock, to its parent.
(iv) Other than dispositions in the Company will ordinary course of business consistent with past practice which would not take any action cause a Paligent Material Adverse Effect or fail to take any actionan IFL Material Adverse Effect (as applicable), the taking of which or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital budgets of the Company for 2002, complete and accurate copies of which are included in Section 5.1(a) of the Company Disclosure Letter; and (vi) the Company will continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company it and its Subsidiaries in filing their Tax Returns.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Timesubsidiaries, the Company taken as a whole, it shall not, nor shall the Company it permit any of its Subsidiaries subsidiaries to, (i) declare sell, lease, encumber or pay any dividends on otherwise dispose of, or make other distributions agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of its assets.
(v) It shall confer on a regular and frequent basis with the other corporate party hereto, report on operational matters and promptly advise the other in cashwriting of any change in the condition (financial or otherwise), stock operations or property) in respect properties, businesses or business prospects of such party or any of its capital stocksubsidiaries which is material to such party and/or its subsidiaries, taken as a whole.
(vi) It shall not permit to occur any (1) change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions, (2) incurrence of Indebtedness or any commitment to incur Indebtedness, any incurrence of a contingent liability, Contingent Obligation or other liability of any type, except for purposes of effectuating the Divestiture (as hereinafter defined)A) with respect to Paligent, and dividends by a wholly owned Subsidiary of the Company for loans pursuant to the Company promissory note dated October 8, 2003 between Paligent and Xxxxx (the “Xxxxx Note”) and (B) with respect to IFL, other than obligations related to the acquisition of Inventory in the ordinary course consistent with past practices, (3) cancellation of any debt or another wholly owned Subsidiary waiver or release of any contract, right or claim, except for cancellations, waivers and releases in the Company ordinary course of business consistent with its past practice which do not exceed $10,000 in the aggregate, (4) amendment, termination or revocation of, or a failure to perform obligations or the occurrence of any default under, (Y) any contract or agreement (including, without limitation, leases) to which it is or, as of June 30, 2006, was a party, other than in the ordinary course of business consistent with past practice, or (Z) any direct License, (5) execution of termination, severance or indirect distributions of or in respect of amounts received in connection similar agreements with any saleof its officers, transfer directors, employees, agents or independent contractors or (6) entering into any leases of real property or agreement to acquire real property other disposition of any than those set forth in Section 5.01(c) of the Unacquired Assets);IFL Disclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (Paligent Inc)
Conduct of the Business Pending the Merger. Between the date of this Agreement and the earlier of (a1) The the Effective Time and (2) the date upon which Purchaser’s designees constitute a majority of the members on the Company covenants Board pursuant to Section 7.3 (the “Control Date”), (i) the Company shall, and agrees shall cause the Company Subsidiaries to, conduct the businesses of the Company and the Company Subsidiaries only in the ordinary course of business and in a manner consistent with past practice and in compliance in all material respects with all applicable Laws; (ii) the Company shall use reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with its customers, suppliers, distributors, licensors, licensees and other persons with which the Company or any of the Company Subsidiaries has business relations; (iii) the Company shall, and shall cause the Company Subsidiaries to, maintain the Company Owned Real Property and Company Leased Real Property in substantially the same condition as the same exist on the date of this Agreement (reasonable wear and tear excepted), (iv) upon reasonable request by Purchaser, the Company shall, or shall cause the Company Subsidiaries to, deliver any written notice necessary to exercise a renewal option with respect to those leases of Company Leased Real Property that require that such notice of renewal be delivered prior to the Effective Time, and (v) the Company shall not, and shall cause the Company Subsidiaries not to, take any action that would adversely affect or delay in any material respect the ability of either Parent or the Company to obtain any necessary approvals of any regulatory agency or other Governmental Authority required for the Transactions. In addition, and not in limitation of the foregoing, except as (x) expressly contemplated by this Agreement, (y) set forth in Section 6.1 of the Disclosure Schedule or (z) as required in compliance with all applicable Laws, neither the Company nor any of the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without Parent's the prior written consent of Parent (which consent or denial shall not be unreasonably withheld or delayed):
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock of the Company or any of the Company Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest and including any Company RSUs or voting securities), of the Company or any of the Company Subsidiaries, except as otherwise contemplated or authorized by this Agreement, for (i) the issuance in the ordinary course of business of Company Stock Options for the purchase of up to 25,000 Company Shares and Company RSUs for the issuance of up to 10,000 Company Shares for employees hired after the date hereof, (ii) the issuance of Company Shares pursuant to exercises of the Company Stock Options or vesting of Company RSUs outstanding on the date hereof as disclosed in Section 4.3(b) in accordance with the terms of those options or Company RSUs on the date of this Agreement) and its Subsidiaries shall be conducted only in(iii) subject to Section 3.7, and issuance of Company Shares pursuant to the Company and its Subsidiaries shall not take ESPP;
(c) transfer, lease, sell, pledge, license, dispose of or encumber any action material assets or properties of the Company or any of the Company Subsidiaries, except in, in the ordinary course of business and in a manner consistent with prior past practice;
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (other than dividends or distributions made by a Company Subsidiary to the Company or another Company Subsidiary);
(e) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any other business combination), any corporation, partnership, other business organization or any division thereof or any other business, or any equity interest in any person or any material amount (individually or collectively) of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities, or assume, guarantee or endorse, or otherwise become responsible for (contingently or otherwise), the Company and its Subsidiaries shall use commercially reasonable efforts to preserve intact their business organizationsobligations of any person, to keep available in the services aggregate in excess of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has material business relations$500,000; (iii) make any loans, advances or capital contributions, except for employee loans or advances for travel expenses and extended payment terms for customers, in each case subject to applicable Law and only in the Company and its Subsidiaries will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing ordinary course of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Actbusiness; (iv) make, authorize, or make any commitment with respect to (A) any single capital expenditure or other expenditure that is, individually, in excess of $500,000 or (B) collectively, in the aggregate for the Company will not take any action or fail to take any action, the taking of which or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of and the Company Subsidiaries taken as reflected on the balance sheet a whole in excess of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof)$2,000,000; (v) make or direct to be made any capital investments or equity investments in any entity, other than investments in any wholly-owned Company Subsidiary; or (vi) enter into or amend any Contract, commitment or arrangement with respect to any matter set forth in this Section 6.1(f);
(g) (i) increase the Company will continue compensation payable or to operate its properties become payable (including by expending money for repairsbonus grants) or increase or accelerate the vesting of any benefits provided, maintenance and replacements) in a manner consistent with the operating and capital budgets or pay or award any payment or benefit not required as of the Company for 2002, complete date hereof by a Plan as existing on the date hereof and accurate copies of which are included disclosed in Section 5.1(a4.10(a) of the Company Disclosure LetterSchedule, to its directors, officers or employees or other service providers, (ii) grant any severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer or other employee or other service providers of the Company or of any Company Subsidiary, subject to sub-Section 6.1(g)(v) below, other than offer letters, employment agreements, or consulting agreements entered into in the ordinary course of business that are terminable at will and without liability to the Company or any Company Subsidiary, (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund, policy or arrangement for the benefit of any director, officer or employee or other service providers, (iv) pay or make, or agree to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit, or (v) hire, elect or appoint any officer, director or employee holding a position of vice president or above;
(h) except as publicly announced prior to the date hereof, announce, implement or effect any reduction in labor force greater than five percent (5%) of the total Company headcount, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or any Company Subsidiary, other than routine employee terminations;
(i) enter into a new line of business that (A) is material to the Company and the Company Subsidiaries taken as a whole, or (B) represents a category of revenue that is not discussed in Item 1 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2009;
(j) take any action, other than reasonable actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable, and the revaluation of any assets);
(k) make or change any election, change an annual accounting period, adopt or change any accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority if such election, adoption, change, amendment, agreement, settlement, surrender, consent, waiver, destruction or disposal would have the effect of materially increasing the Tax liability of the Company or any of the Company Subsidiaries for any period ending after the Effective Time or materially decreasing any Tax attribute of the Company or any of the Company Subsidiaries existing on the Effective Time;
(l) settle, pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), including any litigation, arbitration or other Action, other than (i) the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2009 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice, (ii) those that involve only the payment or receipt of money (and not the assumption of any liability or obligation, including, the grant to any Third Party of any license, covenant not to xxx, immunity or other right with respect to or under any of the Owned Company Intellectual Property) in an amount less than $500,000; provided, that in connection with such payment the Company shall have received a complete and unconditional release against the Company and the Company Subsidiaries, or (iii) settlements in connection with routine customer audits that involve (x) the receipt of $500,000 or less by the Company and (viy) the granting of continued use rights with respect to Company will continue Products or products or services of the Company or any Company Subsidiary;
(m) enter into any Contract or amendment that would be a Company Material Contract, amend or modify in any material respect or consent to make adequate reserves the termination of any Company Material Contract, or amend or modify in any material respect, waive or consent to the termination of the Company’s or any Company Subsidiary’s rights thereunder or waive, release, or consent to the termination of any claims or rights of material value to the Company or any Company Subsidiary; provided, however, that for all purposes of this Section 6.1(m), the definition of “Material Contract:”
(i) shall not include the category of Contracts referenced in Section 4.17(a)(xvi);
(ii) shall not include Contracts entered into with customers of the Company on its balance sheet for Tax liabilities that accrue through the Closing Date terms consistent with the Company’s past custom contracting practices with similarly situated customers; and
(iii) all references to $500,000 in Section 4.17(a)(i) and practice Section 4.17(a)(vii) with respect to any customer contracts shall be deemed to refer to $2,000,000;
(n) enter into (i) any material Contract with new or existing suppliers or customers with a term of greater than thirty-six (36) months, (ii) any Contract with existing suppliers or customers other than on terms consistent with the Company’s or the applicable Company Subsidiary’s existing Contracts with such suppliers or customers, as applicable, as disclosed to Parent prior to the date hereof, or (iii) any Contract with new suppliers or customers other than on terms that are consistent with the Company’s past contracting practices with similarly situated suppliers or customers, as applicable;
(o) enter into any Contracts (i) under which Company or any Company Subsidiary grants or agrees to grant to any Third Party any assignment, license, covenant, release, immunity or other right with respect to any Intellectual Property or Intellectual Property Rights (other than non-exclusive licenses of Software granted to customers in the ordinary course of business consistent with Company’s past practice), (ii) under which Company or any Company Subsidiary establishes with any Third Party a joint venture, strategic relationship, or partnership pursuant to which Company agrees to develop or create any Intellectual Property, products or services; (iii) under which Company or any Company Subsidiary agrees to create or develop any Intellectual Property, products, or services with any Third Party that designs, develops, or manufactures or has manufactured microprocessors, microprocessor cores, netbooks, or personal computers; (iv) that will cause or require (or purport to cause or require) the Surviving Corporation or Parent or any of its Affiliates to (A) grant to any Third Party any license, covenant not to xxx, immunity or other right with respect to or under any of the Company and Intellectual Property or Intellectual Property Rights of Parent or any of its Subsidiaries Affiliates; or (B) be obligated to pay any royalties or other amounts, or offer any discounts, to any Third Party (other than, with respect to the Surviving Corporation only, in filing their Tax Returns.connection with non-exclusive licenses of Software entered into in the ordinary course of business consistent with past practice);
(bp) The Company covenants and agrees enter into or amend any Contract pursuant to which any other party is granted, or that between the date of this Agreement and the Effective Time, otherwise constrains or subjects the Company shall not, nor shall the or any Company permit Subsidiary or Parent or any of its Subsidiaries to, (i) declare any non-competition, “most-favored nation”, exclusive marketing or pay other exclusive rights of any dividends on type or make scope or that otherwise restricts the Company or any Company Subsidiary or, upon completion of the Offer or any other distributions (whether in cashTransaction, stock Parent or property) in respect of any of its capital stocksubsidiaries, except from engaging or competing in any line of business or in any location; or enter into or amend any Contract with respect to joint ventures, partnerships or material strategic alliances; or, other than in the ordinary course of business consistent with past practices, enter into or amend any Contract with respect to future services requirements;
(q) enter into any lease, sublease or license for purposes real property or material operating lease other than the entry into leases with respect to real property spaces of effectuating the Divestiture less than 8,000 square feet and a term of less than two (as hereinafter defined)2) years;
(r) terminate, and dividends cancel, amend or modify any insurance coverage policy maintained by a wholly owned Subsidiary Company or any of the Company to the Company Subsidiaries that is not promptly replaced by a comparable amount of insurance coverage;
(s) enter into or another wholly owned Subsidiary amend or otherwise modify any Contract or arrangement with persons that are affiliates or are executive officers or directors of the Company Company;
(includingt) commence any material Action;
(u) enter into, without limitationparticipate in, establish or join any direct new standards-setting organization, university or indirect distributions of industry bodies or in respect of amounts received in connection with any saleconsortia, transfer or other disposition multi-party special interest groups or activities;
(v) incur any non-employee expense (travel, facilities, other) that was not previously budgeted in the FY 2010 Annual Operating Plan set forth in Section 6.1(v) of the Disclosure Schedule; or
(w) announce an intention, enter into any formal or informal Contract or otherwise make a commitment to do any of the Unacquired Assets);foregoing.
Appears in 1 contract
Samples: Merger Agreement (Intel Corp)
