Conduct of the Business. Pending the Merger. ------------------------------------------ (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree 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 significant business relations, and (iii) 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. (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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied. (c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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. (d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants period from the execution and agrees that between the date delivery of this Agreement by Seller and continuing until the Effective Timeearlier of the termination of this Agreement or the Closing, unless Parent without the advance written consent of Purchaser (which will not be unreasonably withheld, conditioned or delayed) Seller shall otherwise agree (and shall cause its Subsidiaries to), in writingeach case as applicable to the Business, (i) carry on the business of Business in the Company usual, regular 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 past practice, (ii) the Company pay Liabilities and its Subsidiaries shall Taxes (other than Taxes and Liabilities, if any, that are not Assumed Liabilities and that are being contested in good faith through appropriate proceedings) consistent with Seller’s past practices (and in any event when due), (iii) pay or perform other obligations when due consistent with Seller’s past practices (other than other obligations, if any, that are not Assumed Liabilities and that are being contested in good faith through appropriate proceedings), (iv) comply with all applicable Laws in all material respects, and (v) use all commercially reasonable efforts to maintain and protect (which shall not include the FCC Licenses and Channel Leases, making of extraordinary payments) to preserve substantially intact their business organizationsthe Purchased Assets and the Business, to keep available the services of their current officers the Business Employees, and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors, licensors, licensees, lessors, employees, independent contractors and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) 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 Persons having dealings with the FCC and Business, all with the SEC required pursuant to purpose and intent of preserving unimpaired the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of this Agreement Purchased Assets 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 dividends (x) by a wholly owned Subsidiary goodwill and ongoing business of the Company to Business at the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding Closing. Except as of the date of expressly required by this Agreement, Seller shall not (y) exercise and shall cause its Subsidiaries not to), without the prior written consent of warrants and Purchaser (z) conversion of Convertible Preferred Stock; (v) willfully which will not be unreasonably withheld or delayed), knowingly take any action that would make the Company's representations and warranties set forth cause, or agree in Article III not true and correct in all material respects; writing or (vi) otherwise to take any action that wouldSeller knows would cause, any condition to Purchaser’s closing obligations in Section 6.1 or could reasonably Section 6.3 (other than Section 6.3(a)) (or Seller’s closing obligations in Section 6.1 or Section 6.2) not to be expected to, result in any satisfied. Without limiting the generality of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants foregoing, during the period from the execution and agrees that between the date delivery of this Agreement by Seller and continuing until 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) 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 earlier of the Company valid termination of this Agreement 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) merge or consolidate with any other entity in any transactionClosing, 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 expressly 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 the Ancillary Agreements, and except as set forth in writing by Parent; (viii) make any change to the Company Benefit Plans; (ix) enter into any leasing Schedule 4.1, Seller shall not take, cause 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 permit any of the actions described in this Section 5.1.
following actions, without the prior written consent of Purchaser (d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall which will not incur material operating expenses be unreasonably withheld or capital expenditures, in the aggregate, in excess of those identified in the Projections.delayed):
Appears in 1 contract
Conduct of the Business. Pending From the Merger. ------------------------------------------date hereof until the Closing Date, except as expressly contemplated by this Agreement, each Seller:
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only inShall, and shall cause each of its Affiliates to, conduct the Company and its Subsidiaries shall not take any action except in, Business in the ordinary course of business consistent with past practices 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 significant business relations, and (iii) the Company will comply compliance in all material respects with all applicable Laws laws and regulations wherever and to use its commercially reasonable efforts to (i) preserve intact its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents organizations and goodwill associated with the FCC Business, (ii) keep available the services of its officers and employees, and (iii) preserve the relationships with the SEC required pursuant those Persons having business dealing with Seller to the Securities Act end that Seller’s goodwill and ongoing Business shall be unimpaired at the Closing; in connection therewith, no Seller shall accelerate its collections of Accounts Receivable or defer payment of its trade payables of the Exchange Act.Business outside of the ordinary course of business consistent with past practices; and all cash collected by any Seller from Accounts Receivable reflected on the Business Balance Sheet or otherwise generated by the Business shall be used to pay the accounts payable, operating expenses and other liabilities directly related to the operation of the Business to pay such other expenses and liabilities of the Sellers incurred or as may be incurred in the ordinary course of business;
(b) The Company covenants Shall use the proceeds from the Bridge Loans, or cause such proceeds to be used, to pay the accounts payable, operating expenses and agrees that between other liabilities directly related to the operation of the Business and to the extent any remaining proceeds are available to pay such other expenses and liabilities of the Sellers incurred or as may be incurred in the ordinary course of business in accordance with the Bridge Loan Documents;
(c) Shall maintain overall marketing efforts of the Business at levels consistent with past practices in accordance with Sellers’ plans for the remainder of fiscal year 2005 and, shall continue to offer Business products and services upon terms and conditions consistent with those currently being offered on the date hereof in the ordinary course of this Agreement business consistent with past practices;
(d) Shall consult in good faith, cooperate and confer on a regular basis with Buyer to report operational matters of materiality, in order to allow for an orderly transition, and any proposals to engage in material transactions, whether or not in the Effective Timeordinary course of business;
(e) Shall, and shall cause each of its Affiliates to, promptly notify Buyer of any Material Adverse Change, any governmental complaints, investigations or hearings (or communications indicating that the Company same may be contemplated), or any breach or inaccuracy of any representation or warranty contained herein;
(f) Shall not amend its charter, bylaws or similar organizational documents, and shall notcause each Subsidiary of such Seller not to amend its charter, nor shall bylaw or organizational documents, other than amendments solely to effect the Company permit change of corporate name of Sellers and their Affiliates in accordance with Section 5.07;
(g) Shall not (A) issue any of its Subsidiaries toshares of capital stock, effect any share split, share combination, reverse share split, share dividend, recapitalization or other similar transaction (except pursuant to the exercise of the employee options or the warrants existing on the date hereof and disclosed in Schedule 5.01(g), (iB) declare grant, confer or award any option, right, warrant, deferred stock unit, conversion right or other right not existing on the date hereof to acquire any of its shares of capital stock, (C) increase any compensation or enter into, extend or amend any employment or severance agreement with any of its employees, officers or directors, (D) grant any bonuses to any of its employees, officers or directors, or (E) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan;
(h) Shall not (A) declare, set aside or pay any dividends on dividend or make any other distributions distribution or payment (whether in cash, stock or other property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
capital stock of any Seller (cincluding to the Parent Common Stock,) 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 allow any of its the Subsidiaries to, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) to pay or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty make any such indebtedness of another persondividend, other than (A) borrowings under existing lines of credit (distribution 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 payment (other than loans dividends or advances less than $50,000 made distributions from a wholly-owned Subsidiary to another Subsidiary or to Parent in the ordinary course of business consistent with past practice)) or (B) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock or any equity interest of any of the Sellers or Subsidiaries, or make any commitment for any such action;
(i) Shall not, and shall not permit any of its Affiliates to sell, lease, license or otherwise dispose of (i) any assets or properties or any portion thereof owned, held or used by any Seller or any of their Affiliates in connection with, or necessary for, the conduct of the Business, in each case other than pursuant to nonexeclusive customer license agreements entered into in the ordinary course of business consistent with past practice; or (ivii) merge any of the capital stock of or consolidate with any other entity interests in any transaction, of the Sellers (except Parent);
(j) Shall not mortgage or sell pledge any business of its property or assets in a single transaction or series of transactions in which the aggregate consideration is $100,000 subject any such property or greater; assets to any security interest, except for (v) change its accounting policies except as required by GAAP; the security interests granted or to be granted pursuant to the Bridge Loan Documents, (viw) make any change modification of the security interests heretofore granted to Laurus which shall be made in employment terms accordance with the Bridge Loan Documents, (x) any liens for taxes, assessments and other governmental charges not yet due and payable, (y) statutory, mechanics’, laborers’ and materialmen’s liens arising in the ordinary course of business for sums not yet due, and (z) statutory and contractual landlord’s liens under leases pursuant to which Seller is a lessee not in default;
(k) Shall not, and shall not permit any of its directors or officers; (vii) alterAffiliates to, amend or create forgive any obligations with respect existing indebtedness to compensation, severance, benefits, change of control payments any Seller or any Subsidiaries or discharge any security interest in favor of any Seller, or make any loans, advances or transfers (other payments than (i) to employeescustomers of a Seller in an aggregate amount not in excess of $10,000 in the ordinary course of business consistent with past practice and (ii) intercompany loans, directors advances or affiliates transfers from a wholly-owned Subsidiary to another Subsidiary or to Parent, or from Parent to a wholly-owned Subsidiary, in the ordinary course of business consistent with past practice) or capital contributions to, or investments in, any other Person other than reasonable and normal loans or advances to employees for bona fide expenses that are not material in amount and are incurred in the Company ordinary course of business consistent with past practice;
(l) Shall not, and shall not permit any of its Affiliates to, pay, discharge or its Subsidiariessatisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than with respect to alterations the payment, discharge or amendments made with respect to non-officers and non-directors satisfaction, in the ordinary course of business consistent with past practice or as expressly in accordance with their terms, of material liabilities reflected or reserved against in, or contemplated by, the most recent consolidated Financial Statements (or the notes thereto) of Parent included in the Seller Reports filed with the SEC prior to the date hereof or incurred in the ordinary course of business consistent with past practice;
(m) Shall not, and shall not permit any of its Affiliates to, enter into any material commitment, contractual obligation, borrowing, capital expenditure or transaction (each a “Commitment”) which may result in total payments or liability by or to it in excess of $10,000 other than the Bridge Loans, the proposed leasing of new office premises in Foxborough, Massachusetts and customer or vendor agreements entered into in the ordinary course of business consistent with past practice, and shall not make or commit to make capital expenditures in excess of $100,000 in the aggregate;
(n) Shall not amend, terminate, take or omit to take any action that would constitute a violation of or default under any Commitment, except where such action would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(o) Shall not take any action or fail to take any action permitted by this Agreement with the knowledge that such action or consented failure to take action would reasonably be expected to result in writing by Parent; any of the representations and warranties of any Seller set forth in this Agreement becoming untrue such that any of the conditions to consummating the Asset Sale and the other transactions contemplated herein would not be satisfied;
(viiip) make Shall not license or transfer to any change Person or entity any rights to Business Intellectual Property other than customer subscription agreements, licenses, distribution agreements or transfers necessary to conduct development or perform services in the Company Benefit Plans; ordinary course of business consistent with past practice;
(ixq) Shall not merge with, enter into a consolidation with or acquire an interest of 5% or more in any leasing Person or licensing agreementsacquire a substantial portion of the assets or business of any Person or any division or line of business thereof, take-or-pay arrangements or otherwise acquire any assets other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases than in the ordinary course of business; ;
(r) Shall not materially write down or write up (or fail to write down or write up in accordance with consistent past practice) the value of any receivables or revalue any assets of any Seller other than in the ordinary course of business and in accordance with GAAP;
(s) Shall not, without prior notification and consultation with Buyer, terminate any employee under circumstances which would result in severance payments to such employee or pay any severance benefits to any employee on account of such employee’s termination;
(t) Shall maintain in full force and effect in all material respects the insurance policies listed in Schedule 3.15;
(u) Shall not, and shall not permit any of its Affiliates to, create, incur or assume any indebtedness (including, without limitation, refinancing or modifying any existing indebtedness), assume, guarantee, endorse or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing except for the Bridge Loans or intercompany loans from a wholly-owned Subsidiary to another Subsidiary or to Parent, or from Parent to a wholly-owned Subsidiary, in the ordinary course of business consistent with past practice;
(v) Shall not, and shall not permit any of its Affiliates to, make or rescind any election relating to Taxes that could reasonably be expected to affect the Business, the Purchased Assets or the transactions contemplated by this Agreement (unless Seller reasonably determines, after prior consultation with Buyer, that such action is required by applicable law);
(w) Shall not: (A) change any of its methods, principles or practices of accounting currently in effect other than as required by GAAP (including with respect to revenue and expense recognition methods) or (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises the amount of which does not to exceed, individually or in the aggregate, $10,000, or materially change (or make a request to any taxing authority to change) any of its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of its federal income Tax Return for the taxable year ended December 31, 2003, except as may be required by the SEC, applicable law or GAAP;
(x) commit Except as set forth in Schedule 5.01(x), shall not enter into or agree to take amend or otherwise modify any agreement or arrangement with Persons that are Affiliates or, as of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31Agreement, 1999 as agreed are officers or directors of any Seller;
(y) Shall not, authorize, recommend, propose or announce an intention to by adopt a plan of complete or partial liquidation or dissolution of Parent or any Seller without the Company and Parent prior written consent of Buyer (the "Projections"). The Company agrees that it which consent shall not incur material operating expenses be unreasonably withheld);
(z) Shall use best efforts to hire employees to fill the following positions as soon as practicable on terms of employment that shall be acceptable to Buyer: Engagement Manager, Solution Architect, Regional Sales Manager and Support Manager;
(aa) Shall use best efforts to hire new employees to replace any employee, employed as of the date hereof, whose employment is terminated for any reason on terms of employment that shall be acceptable to Buyer; and
(bb) Shall not, and shall not permit any of its Affiliates to, agree in writing or capital expenditures, in otherwise to take any action inconsistent with any of the aggregate, in excess of those identified in the Projectionsforegoing.
Appears in 1 contract
Conduct of the Business. Pending Except as otherwise provided herein or authorized by the Merger. ------------------------------------------Bankruptcy Court prior to the date hereof, from the date hereof until the Closing Date, the Seller, subject to Purchaser's reasonable consent rights:
(a) The Company covenants subject to the constraints imposed by the Budget, shall, and agrees that between shall cause each of the date of this Agreement Acquired Subsidiaries to, conduct the Business and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of each of the Company and its Acquired Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, 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 preserve intact the business or organizations and protect the FCC Licenses relationships with third parties and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of their current officers and the present employees and to preserve the current relationships of the Company Business and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) of each of 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.Acquired Subsidiaries;
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries Acquired Subsidiary to, (i) declare take or pay agree to commit to take any dividends on action that they know would make any representation or make other distributions (whether warranty of Seller hereunder inaccurate in cashany material respect at, stock or property) in respect as of any of its capital stocktime prior to, the Closing Date;
(c) shall not, and shall not permit any Acquired Subsidiary to, offer credit terms or trade promotions to any customers except for dividends (x) by a wholly owned Subsidiary of in the Company to the Company or another wholly owned Subsidiary of the Company, (y) ordinary course consistent with past practices with respect to the Convertible Preferred Stock and (z) with respect applicable product lines of Seller or any Acquired Subsidiary or except to the preferred stock extent reasonably necessary to be competitive with competitors' product offerings;
(d) shall not, and shall not permit any Acquired Subsidiary to, without Purchaser's prior written consent (which shall not unreasonably be withheld) enter into any contract (other than a Software License Agreement or a Professional Services Agreement, purchase order or sale order entered into in the ordinary course) which requires aggregate payments of Speedchoice at least $100,000. If Purchaser disapproves of Detroitany such arrangement or contract pursuant to this clause (d), Inc.; then any event, condition or matter that arises in connection with, or as a result of, such disapproval shall not in any manner (i) be deemed to be a breach of any of Seller's representations, warranties, covenants or obligations under this Agreement, or (ii) split, combine or reclassify any constitute a material adverse change for purposes 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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.Section 6.03(b);
(ce) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries Acquired Subsidiary to, (i) amend its certificate of incorporation (including borrow funds from any certificate of designations attached thereto) Person or bylaws declare or other equivalent organizational documents; (ii) 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 topay dividends, or guaranties of indebtedness owing tomake advances, 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 Person, except for intercompany borrowing and any of its Subsidiaries (other than loans or advances less than $50,000 made related cash management practices in the ordinary course of business consistent with past practice); practices;
(ivf) merge shall not, and shall not permit any Acquired Subsidiary to, cancel or consolidate modify any existing insurance policies;
(g) shall not enter into with any Taxing Authority any closing agreement or other entity in agreement to settle any transaction, claim or sell assessment for Taxes on a basis that would increase the Tax liability of any business or assets in a single transaction or series of transactions in which the aggregate consideration is $100,000 or greaterAcquired Subsidiaries; and
(vh) change its accounting policies except as required by GAAP; (vi) shall not make any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations material election 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 5.1Taxes.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (System Software Associates Inc)
Conduct of the Business. Pending From the Merger. ------------------------------------------
date hereof until the earlier of the termination of this Agreement and the Closing, except (ai) The as set forth on Schedule 5.01 of the Disclosure Schedules, (ii) as the Parent shall have provided its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed and may be via email), (iii) as reasonably necessary to ensure that it complies with applicable Laws, including a change in applicable Laws relating to or resulting from any Contagion Event or COVID-19 Measure, or (v) as expressly required by this Agreement, (1) the Company covenants shall, and agrees that between shall cause its Subsidiaries to, conduct their respective businesses in the Ordinary Course of Business and use commercially reasonable efforts to preserve intact the businesses, properties, assets, rights, employees and goodwill of the Group Companies consistent with past practice; provided, that, notwithstanding the foregoing, the Company may use available cash to repay any Indebtedness under Contracts existing as of the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company Group Companies may liquidate their short-term and its Subsidiaries shall be conducted only in, long-term corporate bond 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 significant business relationssimilar security investments into Cash, and (iii2) 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.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company permit any of cause its Subsidiaries not to, :
(ia) 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) issuances as may result from the exercise of Company Options outstanding as of the date of this AgreementAgreement or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a permitted transfer of Company Stock by the holder thereof, (y) exercise issue, sell, grant, pledge, encumber or deliver any of warrants and (z) conversion of Convertible Preferred Stock; (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 wouldits, or could reasonably be expected any of its Subsidiaries’, equity securities or issue, sell or grant any securities convertible into, or options with respect to, result in or warrants to purchase or rights to subscribe for, any of the conditions its or any of its Subsidiaries’ equity securities, or issue, sell, grant, pledge, encumber or deliver any other Equity Securities;
(b) effect any recapitalization, reclassification, distribution, equity split or like change in its capitalization or declare, set forth in Article VI not being satisfied.aside, make or pay any dividend (other than any dividend by any Group Company to another Group Company);
(c) 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 amend its Organizational Documents or any of its Subsidiaries to, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent Subsidiaries’ organizational documents; ;
(ii) 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 (iiid) make any loans redemption or advances to any other person other than loans purchase of its, or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries Subsidiaries’, Equity Securities (other than loans or advances less than $50,000 made in the ordinary course of business consistent with past practice); (iv) 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 the repurchase of Company Stock (including any Options) from former employees of a Group Company to the extent required by agreements or amendments made any Company Plan, in each case, existing as of the date of this Agreement);
(e) sell, assign, license, lease, encumber or transfer any material assets, except in the Ordinary Course of Business and Permitted Liens;
(f) sell, assign, lease, transfer, encumber or license any Company IP, except in the Ordinary Course of Business and Permitted Liens;
(g) place any Company Proprietary Software into a source code escrow;
(h) enter into, materially amend or voluntarily terminate any Material Contract, other than in the Ordinary Course of Business;
(i) make any capital or similar investment in, or any loan to, any other Person (other than a Group Company);
(j) make any capital expenditures in excess of $250,000 in the aggregate, except for capital expenditures paid with respect Cash prior to non-the Closing Date or leases which are treated as Indebtedness hereunder;
(k) make any loan to any of its officers and non-directors employees, except pursuant to any agreement set forth on the Disclosure Schedules;
(l) except as required under the terms of any Company Plan or applicable Law: (1) grant any incentive awards or, other than in the Ordinary Course of Business, make any increase in the salaries, bonuses or other compensation and benefits under any Company Plan payable by a Group Company to any of its employees, officers or directors; (2) terminate or amend any Company Plan; or (3) adopt or enter into any plan, policy or arrangement for the current or future benefit of any officer or director of any Group Company that would be a Company Plan if it were in existence as of the date hereof;
(m) commence or settle any Action outside the Ordinary Course of Business;
(n) make or change any material election in respect of Taxes, (ii) make any material change in any method, practice or policy of accounting used by the Group Companies in the preparation of the financial statements or Tax Returns of the Group Companies, (iii) settle or compromise any claim or assessment of Taxes with any Governmental Entity relating to any Group Company, (iv) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Group Company (other than extensions to file Tax Returns obtained in the Ordinary Course of Business), or (v) fail to make any material estimated Tax payment;
(o) directly or indirectly acquire, by merging or consolidating with, or by purchasing an equity security in, or by any other manner, any Person or division, business or equity interest in any Person;
(p) make any changes in accounting methods, principles or practices, except insofar as may be required by a change in GAAP; or
(q) grant credit and other sales or license terms to any customer on terms or in amounts materially more favorable than those that have been provided to customers in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement effect any other material change in any material policies or consented to in writing by Parent; (viii) make any change practices relating to the Company Benefit Plansbilling or collection of accounts receivable and similar amounts; or
(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 (xr) commit or agree agree, in writing or otherwise, to take any of the actions described foregoing actions. Nothing contained in this Section 5.1.
Agreement shall give the Parent or the Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing, and the Group Companies’ failure to take any action prohibited by subclauses (da)-(r) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it Section 5.01 shall not incur material operating expenses be a breach of this Section 5.01 or capital expenditures, in the aggregate, in excess any other covenant of those identified in the Projectionsthis Agreement.
Appears in 1 contract
Conduct of the Business. Pending Except as may be required by the Merger. ------------------------------------------
(a) The Company covenants Bankruptcy Court, except for the consequences resulting from the commencement and agrees that between continuation of the Bankruptcy Case, and except as may be required or contemplated by this Agreement, from the date hereof until the earlier of the Closing Date or the date of termination of this Agreement and the Effective TimeAgreement, unless Parent shall otherwise agree 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 Seller shall use all its commercially reasonable efforts to maintain conduct the Business in the ordinary course consistent with past practice and protect the FCC Licenses and Channel Leases, to preserve substantially intact their the business organizations, organizations and relationships with third parties (including suppliers and customers) and to keep available the services of their current officers and the present employees and to preserve the current relationships of the Company Business including, specifically (i) selling inventory during such period at customary prices, (ii) not promoting or advertising any sales or in-store promotions (including POS promotions) to the public, (iii) not returning inventory to vendors and its Subsidiaries with customersnot transferring inventory or supplies between or among Stores outside the ordinary course of business, suppliers and other persons with which (iv) not making any voluntary, material management personnel moves or changes at the Company or its Subsidiaries has significant business relationsStores outside the ordinary course of business, and (iiiv) cooperating reasonably with Purchaser to cancel Open Purchase Orders provided that doing so does not require Seller to incur any expense or to incur any obligation or liability to any third party vendor (unless Purchaser agrees to reimburse Seller for such expense and to pay any such obligation or liability); provided, however, notwithstanding any other provision of this Agreement, Seller shall be entitled to give notices under the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedWARN Act to employees at any Store, includingDistribution Center and/or the Corporate Headquarters that may be covered by the WARN Act. Without limiting the generality of the foregoing, without limitation, from the timely filing date hereof until the earlier of all reports, forms the Closing Date or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of termination of this Agreement and the Effective TimeAgreement, the Company shall not, nor shall the Company permit any of its Subsidiaries to, except (i) declare or pay any dividends as disclosed on or make other distributions Schedule 6.1, (whether in cashii) as may be required by the Bankruptcy Court, stock or property(iii) in respect of any of its capital stockthe ordinary course consistent with past practice, except (iv) for dividends (x) by a wholly owned Subsidiary the consequences resulting from the commencement and continuation of the Company to Bankruptcy Case, or (v) as may be required or contemplated by this Agreement, Seller will not (without the Company or another wholly owned Subsidiary prior written consent of the Company, Purchaser):
(ya) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock Business acquire a material amount of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of assets from any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issue, deliver Person or sell, lease, license or authorize or propose the issuance, delivery or sale of, otherwise dispose of any shares Acquired Assets except for (1) sales 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 Merchandise in the ordinary course of business; , or (x2) pursuant to existing contracts or commitments disclosed to Purchaser; BOS 46,600,661 v6
(b) agree or commit or agree to take do any of the actions described in this Section 5.1.foregoing;
(di) The Company Disclosure Letter sets forth place any orders for additional Merchandise; or
(ii) take any action that would reasonably be expected to cause the projected operating expenses and capital expenditures for Company and failure of any condition contained in Section 10.2 (other than actions taken by Seller in connection with the discharge of its Subsidiaries on a consolidated basis from fiduciary duties during the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"Bankruptcy Case). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company hereby covenants and agrees that between the date of this Agreement and the Effective Timethat, unless Parent shall otherwise agree 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 significant business relations, and (iii) 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.
(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 stockClosing, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 on the Conduct of the conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 Business Schedule or as otherwise expressly contemplated by this Agreement or consented to in writing by Parentthe Purchaser (which consent the Purchaser will not unreasonably withhold, delay or condition), the Company shall, and shall cause its Subsidiaries to, (i) operate their respective businesses in the Ordinary Course of Business; (viiiii) make use commercially reasonable efforts to preserve substantially intact their business organization, maintain their rights, retain the services of their respective principal officers and key employees and maintain their relationship with their respective principal customers and suppliers, landlords, creditors, employees, agents and others having business relationships with them; (iii) use their commercially reasonable efforts to maintain and keep their tangible properties and assets in as good repair and condition as at present, ordinary wear and tear excepted, and replace any change material item of equipment that shall be worn out, broken, lost, stolen or destroyed, to the Company Benefit Plansextent such equipment would have been replaced in the Ordinary Course of Business; (iv) keep in full force and effect insurance comparable in amount and scope of coverage to that currently maintained by them; (v) as the Purchaser may reasonably request from time to time, confer with the Purchaser concerning the status of such Company's or Subsidiary's business, operations and finances (so long as the same does not unreasonably interfere with the conduct of the Companies' or its Subsidiaries respective businesses); (vi) provide the Purchaser copies of theatre renovation or construction plans and any material change orders related to the Leased Real Property under construction or renovation and any material changes to such plans; (vii) use commercially reasonable efforts to keep in full force and effect, without amendment, all material rights relating to such Company's or Subsidiary's business; (ix) enter into any leasing or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements use commercially reasonable efforts to comply with respect all Laws and contractual obligations applicable to the FCC Licenses, provided, the Company may renegotiate any Channel Leases in the ordinary course operations of such Company's or Subsidiary's business; or (x) commit or agree deliver to take any the Purchaser within 30 days after the end of each month and within 45 days after the end of each fiscal quarter an unaudited consolidated balance sheet of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a as of the end of such month or quarter, and the related consolidated basis from the date statements of this Agreement through December 31, 1999 as agreed to by income and cash flow of the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses its Subsidiaries for such month or capital expendituresquarter, prepared in good faith, in accordance with GAAP and in accordance with the aggregatemethodologies set forth in Section 2.01(e) and on the same basis of presentation used to prepare the Financial Statements insofar as such practices are consistent with GAAP; and (xi) maintain all books and records of such Company or Subsidiary relating to such Company's or Subsidiary's business, as applicable, in excess of those identified all material respects in the ProjectionsOrdinary Course of Business.
Appears in 1 contract
Conduct of the Business. Pending Each of WHF Parent and the Merger. ------------------------------------------
(a) The Company Sellers covenants and agrees that between that, except as otherwise contemplated by this Agreement (including the Schedules and Exhibits hereto), during the period commencing on the date of this Agreement hereof and ending on the Closing Date, WHF Parent and the Effective Time, unless Parent shall otherwise agree Sellers will cause each of WPI and WIN to use their reasonable efforts to conduct the Business 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 organizationspast practices, to keep available the services of their current officers the employees of WPI and employees and WIN, to preserve the current relationships of the Company WPI and its Subsidiaries WIN with their customers, suppliers suppliers, advertisers, distributors and other persons Persons with which the Company or its Subsidiaries has WPI and WIN have significant business relations, to make payments and (iii) collect receivables in a manner consistent with past practice, and to maintain and preserve intact the Company will comply Business in all material respects with all applicable Laws a view toward preserving to and regulations wherever its business is conducted, including, without limitation, after the timely filing Closing Date the Business and the assets and the goodwill of all reports, forms WPI and WIN (it being understood that such efforts will not include any requirement or obligation to pay any consideration not otherwise required to be paid by the terms of an existing agreement or offer or grant any financial accommodation or other documents with benefit not otherwise required to be made by the FCC terms of an existing agreement). Until the Closing, except as otherwise contemplated by this Agreement (including the Schedules and with Exhibits hereto) or any Transaction Document, permitted by the SEC Tax Sharing Agreement, required pursuant by any change in applicable Law or otherwise approved in writing by Buyer (which approval shall not be unreasonably withheld or delayed), each of WHF Parent and the Sellers will cause WPI, WIN and the Company not to take any of the Securities Act following actions:
(i) (a) amend its Certificate of Incorporation or the Exchange Act.
Bylaws; (b) The Company covenants and agrees that between the date of this Agreement and the Effective Timeauthorize for issuance, the Company shall notissue, nor shall the Company permit grant, sell, deliver, dispose of, pledge or otherwise encumber 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any shares of its capital stock or issue any Rights to subscribe for 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 or otherwise acquire any shares of its capital stock; (ivc) amend the Certificate of Formation of the Company; or (d) authorize for issuance, issue, deliver or grant, sell, or authorize or propose the issuancedeliver, delivery or sale dispose of, pledge or otherwise encumber any LLC Units;
(ii) declare, set aside, pay or make any dividend or other distribution with respect to its shares of its capital stock or any securities convertible into any such shares of its capital stock, except for cash dividends and any dividend or distribution to WHF Parent in respect of indebtedness owed by WHF Parent to WPI;
(iii) except as required by GAAP, change any rightsaccounting methods, warrants principles or options practices;
(iv) sell, transfer, license, grant permission to acquire use or otherwise dispose of or encumber any such shares of the assets pertaining to the Business, including the Business Intellectual Property or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalentsrights related thereto, other than in the issuance ordinary course of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; business consistent with past practice;
(v) willfully take (a) create, incur or assume any action long-term debt that would make will be transferred to the Company's representations and warranties set forth Company in Article III not true and correct in all the Contribution, (b) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material respects; or (vi) take obligations of any action that wouldPerson, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the Effective Timemake any loans, the Company shall not, nor shall the Company permit advances or capital contributions to or investments in 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) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, Person other than the Sellers, WPI or the Acquired Subsidiaries (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 except for customary loans or advances to employees), (d) fail to preserve or protect their rights in all material Business Intellectual Property or to renew, maintain, or take such steps or make such payments and filings, in each case, as may be reasonably necessary to preserve the validity and enforceability of all Registered Intellectual Property, or (e) breach, terminate, nullify, fail to renew, allow to lapse or otherwise act or fail to act in such a manner as to diminish any other person other than loans of WPI's or advances between WIN's rights under the Business IP Licenses;
(vi) (a) grant any Subsidiaries increase in the compensation of employees of the Company or between the Company Business, except for year end salary adjustments and any of its Subsidiaries (other than loans or advances less than $50,000 year end bonuses made in the ordinary course of business consistent with past practice); , (ivb) 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, hire new employees 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 practice, (c) enter into any new employment, severance, consulting or as expressly contemplated other compensation agreement with any director, officer or employee of WPI or WIN, except for the employment agreements disclosed in Section 5.1(a)(vi) of the Disclosure Schedule in the forms previously delivered to Buyer (which employment agreements and the Liabilities relating thereto shall be assumed by this Agreement Buyer at the Closing), or consented (d) adopt or commit to any pension, profit-sharing, deferred-compensation, group insurance, severance pay, retirement or other Employee Benefit Plan, fund or similar arrangement or amend or terminate in writing by Parent; any respect or commit itself to amend any Employee Benefit Plan;
(vii) waive any claims or rights relating to the Business, other than in the ordinary course of business consistent with past practice;
(viii) make any material Tax election, change any method of accounting with respect to the Company Benefit Plans; (ix) enter into a material Tax, file any leasing material amended Tax Return, or licensing agreementssettle or compromise any proceeding with respect to a material Tax Liability, take-or-pay arrangements or other affiliations, alignments or agreements in each case with respect to the FCC LicensesAcquired Subsidiaries;
(ix) (a) grant any material bonus, providedfree or make good space to any advertiser or change the discount structure for any of the Business' advertising customers, the Company may renegotiate any Channel Leases other than in the ordinary course of businessbusiness consistent with past practice, (b) (1) change the subscription pricing of any of the publications of the Business or (2) enter into, amend or terminate any material arrangements with any subscription agents, (c) change any cover prices, wholesaler discounts or make any other changes to the incentive sales programs (wholesale or retail) of the Business, (d) enter into any material licensing agreement, arrangement or understanding with respect to television, radio, Internet or other media or enter into any material licensing agreement, arrangement or understanding with respect to any "branded" merchandise bearing any of the trademarks or tradenames used in the Business owned or licensed by the Sellers or the Acquired Subsidiaries; (e) enter into, amend or terminate any agreements or arrangements with the national distributor of the publications; or (f) take any action with respect to the publications of the Business in contravention of the advice of the litigation counsel of the Business;
(x) commit enter into any contract, arrangement or agree commitment with respect to take the Business involving the payment of more than $100,000 or otherwise material to the Business;
(xi) cancel any material third party indebtedness owed to any Seller or Acquired Subsidiary;
(xii) in connection with the transactions contemplated by the Contribution Agreement, offer, or cause or permit the Company to offer employment to any employees of the Business, such offers of employment shall be made by the Buyer pursuant to Section 5.7(a) of this Agreement; or
(xiii) agree, whether in writing or otherwise, to do any of the actions described in this Section 5.1foregoing.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (American Media Operations Inc)
Conduct of the Business. Pending in the MergerOrdinary Course. ------------------------------------------Sellers shall conduct the Business in the ordinary course except as expressly contemplated by this Agreement or the Ancillary Agreements or as required by applicable laws, regulations, orders or decrees. Without limiting the generality of the foregoing, Sellers shall:
(a) The Company covenants and agrees that between keep available to the Business those services of Sellers' Affiliates to the same extent generally available on the date of this Agreement and hereof;
(b) operate the Effective TimeBusiness in substantially the same manner as it is currently being conducted and, unless Parent shall otherwise agree with respect to the Business, refrain from entering into any Contract that would be a Material Contract other than 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 business;
(c) not institute any proceeding with respect to, or otherwise materially change, amend or supplement any of its local exchange, intrastate toll or intrastate and interstate access tariffs affecting the Business (other than Verizon-wide proceedings with the FCC, subject to Sellers' commercially reasonable efforts, upon Buyer's request, to exempt from such filings the Seller Exchanges) without the prior written consent of Buyer, which consent shall not be unreasonably withheld or make any other filings with the Commission except in the ordinary course of business, and except as set forth in Schedule 4.1.12(a);
(d) maintain the tangible Acquired Assets in good repair, order and condition, reasonable wear and tear excepted;
(e) maintain the material insurance policies with respect to the Acquired Assets consistent with past practice; provided that the parties acknowledge that Sellers or Verizon may at any time cancel prospectively or not renew any of the Verizon corporate insurance programs as to coverage relating to events after the Closing Date or insured risks other than those associated with the Business on or prior to the Closing Date;
(f) make capital expenditures as required to maintain the current operation of the Business and to support normal customer growth in a manner consistent with the provisions of Section 5.1.6 hereof;
(g) maintain the books and records of the Business substantially in accordance with prior practice, except as changes are mandated by Governmental Authorities or required by GAAP;
(iih) not make any change in 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 general lines of 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 significant business relations, and (iii) 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.Business;
(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 not sell, lease or pay any dividends on dispose of, or make other distributions (whether in cashany contract for the sale, stock lease or property) in respect disposition of any of its capital stockmaterial Acquired Asset, except for dividends (x) by a wholly owned Subsidiary of nor permit the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance imposition of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sell, or authorize or propose Lien on 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 equivalentsAcquired Assets, other than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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); ;
(ivj) merge not materially increase the number of employees who, upon the Closing, are expected to become Transferred Employees or consolidate with materially modify the benefit provided under any other entity in any transactionPlans concerning employee benefits or materially increase the general rates of compensation of its employees who, or sell any business or assets in a single transaction or series of transactions in which upon the aggregate consideration is $100,000 or greater; Closing, will be Transferred Employees, except (vi) change its accounting policies except as required by GAAP; Law, (viii) make pursuant to any change in employment terms for any of its directors or officers; Contract to which either Seller is a party existing on the date hereof, (viiiii) 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 of Sellers consistent with past practice practice, (iv) as ancillary to Verizon wide Plan changes, or (v) as expressly contemplated by this Agreement listed or consented to in writing by Parent; described on Schedule 5.1.1(j);
(viiik) make not materially amend, modify or terminate any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements, take-or-pay arrangements or Material Contract other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases than in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.;
(dl) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 except as agreed to permitted by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.Section 5.1.1
Appears in 1 contract
Conduct of the Business. Pending the MergerClosing. -------------------------------------------------------------------------------------
(a) The Company covenants Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, until the Closing Date, each of National and agrees the Shareholders shall, and shall cause each of the Subsidiaries to:
(i) conduct the respective businesses of National and its Subsidiaries only in the ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of National and its Subsidiaries and (B) preserve its present relationship with Persons having business dealings with National and its Subsidiaries;
(iii) maintain (A) all of the assets and properties of each of National and its Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of National and its Subsidiaries in such amounts and of such kinds comparable to that between in effect on the date of this Agreement Agreement;
(A) maintain the books, accounts and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business records of the Company each of National and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practicepast practices, (iiB) the Company continue to collect accounts receivable and its Subsidiaries shall use all commercially reasonable efforts to maintain pay accounts payable utilizing normal procedures and protect the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to keep available the services without discounting or accelerating payment 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 significant business relationssuch accounts, and (iiiC) comply with all contractual and other obligations applicable to the Company will operation of each of National and its Subsidiaries;
(v) promptly pay and discharge all liabilities (including liabilities for services rendered or goods delivered to National) that are due and payable by it prior to the Closing Date except where such liabilities are being disputed in good faith by appropriate proceedings; and
(vi) comply in all material respects with all applicable Laws and regulations wherever its business is conductedLaws, 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 ActEnvironmental Laws.
(b) The Company covenants and agrees that between the date of Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, until the Closing Date, National, the Shareholders and the Effective Time, the Company Tri-S Shareholders shall not, nor and shall cause each of National and its Subsidiaries not to:
(i) except as expressly provided in Section 1.3, declare, set aside, make or pay any dividend or other distribution in respect of the Company permit capital stock of National or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, National or any of its Subsidiaries;
(ii) except as provided in Sections 6.15 and 6.17, transfer, issue, sell or dispose of any shares of capital stock, partnership interests or other securities of National or any of its Subsidiaries toor grant options, (i) declare warrants, calls or pay any dividends on other rights to purchase or make otherwise acquire shares of the capital stock, partnership interests or other distributions (whether in cash, stock securities of National or property) in respect of any of its capital stockSubsidiaries;
(iii) effect any recapitalization, except for dividends (x) by a wholly owned Subsidiary reclassification, stock split or like change in the capitalization of the Company to the Company National or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 or otherwise acquire any shares of its capital stock; Subsidiaries;
(iv) issueamend the certificate of incorporation, deliver by-laws, certificate of limited partnership or sell, partnership agreement of National 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; Subsidiaries;
(v) willfully take any action that would make the Company's representations and warranties Except as set forth in Article III not true and correct in all material respects; on Schedule 6.2, (A) increase the annual level of compensation of any employee of National or (vi) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personwhose annual compensation exceeds C$50,000, other than (A) borrowings under existing lines any such increases 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 5% in the aggregate granted in the ordinary course of business consistent with past practice); , (ivB) merge increase the annual level of compensation payable or consolidate to become payable by National or any of its Subsidiaries to any of their respective executive officers, (C) grant any bonus, benefit or other direct or indirect compensation to any employee, director or consultant whose annual compensation exceeds C$50,000, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) except for the Employment Agreement increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any other entity of the directors, officers, employees, agents or representatives of National or any of its Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensa- tion, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which National or any of its Subsidiaries is a party or involving a director, officer or employee of National or any of its Subsidiaries in his or her capacity as a director, officer or employee of National or 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; Subsidiaries;
(vi) make any change except for trade payables and for indebtedness for borrowed money incurred in employment terms the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of its directors credit or officers; debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) altersubject to any Lien, 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 Assets;
(viii) acquire any material properties or its Subsidiariesassets or sell, assign, transfer, convey, lease or otherwise dispose of any of the Assets, except (other than with respect to alterations the Stores or amendments made with respect to non-officers and non-directors the Business) for fair consideration 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; of National and its Subsidiaries;
(ix) cancel or compromise any debt or claim or waive or release any material right of National or any of its Subsidiaries except in the ordinary course of business consistent with past practice;
(x) enter into any leasing commitment for Capital Expenditures of National and its Subsidiaries;
(xi) enter into, modify or licensing agreementsterminate any labor or collective bargaining agreement of National or any of its Subsidiaries or, take-or-pay arrangements through negotiation or other affiliationsotherwise, alignments make any commitment or agreements incur any liability to any labor organization with respect to National or any of its Subsidiaries;
(xii) introduce any material change with respect to the FCC Licensesoperation of National or any of its Subsidiaries, providedincluding any material change in the types, the Company may renegotiate any Channel Leases nature, composition or quality of its products or services or, other than in the ordinary course of business; , make any change in product specifications or prices or terms of distributions of such products;
(xxiii) commit permit National or any of its Subsidiaries to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xiv) become obligated to develop any new locations;
(xv) permit National or any of its Subsidiaries to (i) enter into or agree to enter into any merger or consolidation with any Person or (ii) engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of, any other Person;
(xvi) except for transfers of cash pursuant to normal cash management practices, permit National or any of its Subsidiaries to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Shareholder or any Tri-S Shareholder or any shareholder, partner or Affiliate of any Shareholder or any Tri-S Shareholder;
(xvii) restructure, change, modify or renegotiate the terms of any obligation of National to another Person which restructuring, change, modification or renegotiation has the effect of extending, delaying or deferring the time for payment or performance of any such obligation, other than in the ordinary course of business consistent with past practice;
(xviii) agree to do anything prohibited by this Section 6.2 or take or omit to take any action which would make any of the actions described representations and warranties of the Shareholders or the Tri-S Shareholders in this Section 5.1.Agreement or the Shareholder/National Documents or the Tri-S Documents untrue or incorrect in any material respect as of any time through and including the Closing Date; or
(dxix) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures make any material Tax allocation or settle or compromise any Tax liability for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, an amount materially in excess of those identified in the Projectionsliability therefor that is reflected on the financial statements of National (or any Subsidiary of National), as the case may be.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees ----------- that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Merger Agreement (Sprint Corp)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the termination of this Agreement and the Effective TimeClosing Date, unless Parent shall otherwise agree in writing, except (i) the business as set forth on Schedule 5.01 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 practiceDisclosure Schedules, (ii) if the Parent shall have consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) as reasonably necessary to ensure that it complies with applicable Laws or (iv) as otherwise expressly contemplated by this Agreement, (1) the Company and its Subsidiaries shall use all its commercially reasonable efforts to maintain conduct its business and protect the FCC Licenses businesses of its Subsidiaries in the Ordinary Course of Business; provided that the Company may use available cash to repay any Indebtedness or to make cash dividends on or prior to the Reference Time as long as such cash dividend would not cause the Company’s Cash to be less than an amount necessary to operate in the Ordinary Course of Business, (2) the Company shall, and Channel Leasesshall cause its Subsidiaries to, use commercially reasonable efforts to preserve substantially intact their businesses, their assets and their material 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 significant business relationsthird parties in all material respects, and (iii3) 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.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries to:
(a) except for issuances as may result from the exercise of Options that are outstanding as of the date hereof (or issued after the date hereof with the prior written consent of the Parent) or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, (i) declare issue, sell, grant or pay deliver any dividends on of its, or make other distributions (whether in cash, stock or property) in respect of any of its capital stockSubsidiaries’, except for dividends equity securities or issue, sell or grant any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, or other securities with their value derived from the profits or equity returns of, any of its or any of its Subsidiaries’ equity securities;
(xb) by a wholly owned Subsidiary of the Company to the Company effect any recapitalization, reclassification, distribution, equity split or another wholly owned Subsidiary like change in its capitalization;
(c) amend its Organizational Documents or any of the Company’s Subsidiaries’ organizational documents;
(d) make any redemption or purchase of its, or any of its Subsidiaries’, equity interests (y) other than with respect to the Convertible Preferred repurchase of Company Stock and (zincluding any Options) with respect from former employees of a Group Company pursuant to the preferred stock of Speedchoice of Detroitexisting agreements or any Company Plan) or declare, Inc.; make or pay any dividend or distribution other than cash dividends expressly authorized by this Section 5.01;
(iie) splitsell, combine assign or reclassify transfer any material portion of its capital stock tangible assets, except for sales of obsolete assets or issue assets with de minimis or authorize no book value;
(f) sell, assign, transfer or propose exclusively license any material Intellectual Property, except for licenses of Intellectual Property in the issuance Ordinary Course of Business in connection with a customer or reseller Contract;
(g) enter into, transfer, terminate, modify, amend, waive any rights under, or discharge any other party of any obligation under, any Material Contract (other securities in respect ofthan entry into, extensions or upgrades of Contracts with Specified Customers, Specified Vendors and Specified Resellers, in lieu each case, in the Ordinary Course of or in substitution for shares of its Business and provided that such Contracts are not, and would not be, Material Contracts pursuant to Section 3.10(a)(x));
(h) make any material capital stock; (iii) repurchase 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 stockinvestment in, or any rightsmaterial loan to, warrants or options any other Person, except pursuant 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 (x) the exercise of Company Options outstanding existing agreement as of the date of this Agreement;
(i) fail to make capital expenditures in accordance, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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, with the capital expenditures budget existing as of the date of this Agreement;
(j) make any commitment to make any capital expenditures in excess of $150,000 in the aggregate, except for such capital commitments that are reflected in the Company’s current budget;
(k) enter into any Affiliate Transactions or Interests;
(l) make any loan to any of its directors, officers or employees other than the advancement of business and travel expenses in the Ordinary Course of Business or to any of its other Affiliates;
(m) except as required under the terms of any Company Plan or applicable Law: (i) grant any incentive awards or make any increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of its employee, officers or directors; (ii) terminate or materially amend any Company Plan; (iii) adopt or enter into any plan, policy or arrangement for the current or future benefit of any officer or director of any Group Company that would be a Company Plan if it were in existence as of the date hereof, (iv) accelerate the time of payment or vesting of any compensation and benefits of any employee or director of any Group Company (or pay to any such individual any amount not otherwise due), (v) fund any rabbi trust or similar arrangement, or (vi) take hire or terminate any action that wouldemployee with a base salary of greater than $125,000, or could reasonably be expected to, result in other than the termination of any of the conditions set forth in Article VI not being satisfied.such employee for cause;
(cn) The Company covenants and agrees that between the date of this Agreement and the Effective Timecommence, the Company shall not, nor shall the Company permit compromise or settle any of its Subsidiaries to, Action if (i) amend its certificate of incorporation (including the amount payable by any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; Group Company in connection therewith would exceed $50,000, (ii) such settlement would be reasonably likely to have a material and adverse effect on the post-Closing operations of the business of any Group Company or (iii) such settlement, compromise or release contemplates or involves any admission of wrongdoing or misconduct or provides for any relief or settlement other than the payment of money; or
(o) incur any indebtedness for borrowed money Indebtedness or guaranty assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any such indebtedness of another personPerson;
(p) create or incur any Lien on any asset, other than Permitted Liens;
(Aq) borrowings under existing lines of credit acquire any real property or any direct or indirect interest in any real property;
(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); (ivr) merge or consolidate with any other entity Person or acquire an amount of stock or assets of any other Person in any transaction, excess of $1,000,000 or sell effect any business combination, recapitalization or assets in a single similar transaction or series of transactions in which (other than the aggregate consideration is $100,000 or greater; Merger);
(vs) make any material change to its accounting methods, policies or practices or practices with respect to the maintenance of books of account and records, except as required by GAAPGAAP or applicable Law;
(t) make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law), apply for or request any Tax ruling, or surrender any right to claim a material Tax refund;
(u) forgive, cancel or compromise any material debt or claim, or waive, release or assign any right or claim of material value, other than in the Ordinary Course of Business;
(v) (i) fail to manage working capital in the Ordinary Course of Business including with respect to payment of accounts payables and collection of account receivables (including in each case, the timing of any such payments or collections); (viii) make any change in employment terms for any of its directors or officers; (vii) alterchanges to working capital policies, amend or create any obligations including with respect to compensationrevenue recognition, severancepayment of accounts payables and collection of accounts receivables or (iii) change in any material respect the management of working capital or timing of invoicing billing or collection from customers, benefitsin each case outside the Ordinary Course of Business;
(w) make, change of control payments provide or agree to any material payments, material discounts or any other payments consideration to employeescustomers or suppliers, directors other than in the Ordinary Course of Business;
(x) adopt or affiliates enter into a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization 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 Subsidiaries (other than the Merger); or
(y) authorize any of, or agree or commit to do any of the foregoing actions. Nothing contained in this Section 5.1Agreement shall give the Parent or the Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending From the Mergerdate hereof until the Closing, except as otherwise provided in this Agreement or as required by applicable Law or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed), the Company the Subsidiaries of the Company shall, (x) conduct the Business of the Company and the Subsidiaries of the Company in the Ordinary Course of Business, and (y) use commercially reasonable efforts to maintain and preserve intact the current organization, business and franchise of the Company and the Subsidiaries of the Company and to preserve the rights, franchises, goodwill and relationships of its customers, lenders, suppliers, providers, insureds, regulators and others having business relationships with the Company and the Subsidiaries of the Company. ------------------------------------------Without limiting the foregoing, from the date hereof until the Closing Date, and except as otherwise provided in this Agreement, as required by Law, or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed), the Company and the Subsidiaries of the Company shall:
(a) The preserve and maintain all of their material Permits and otherwise operate the Business in compliance with all applicable Laws in all material respects;
(b) deliver to Buyer, as promptly as practicable after preparation thereof, (i) unaudited or audited, as the case may be, GAAP Statements filed with any Governmental Authority by or on behalf of the Company covenants and agrees that between the Subsidiaries of the Company after the date of this Agreement and copies of material correspondence relating to any such GAAP Statements; (ii) unaudited or audited, as the Effective Timecase may be, unless Parent shall otherwise agree in writing, (i) the business Statutory Accounting Statements filed by or on behalf of the Company and its the 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 significant business relations, and (iii) 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.
(b) The Company covenants and agrees that between after the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit copies of material correspondence relating to 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 stocksuch Statutory Accounting Statements; (iii) repurchase any Company SEC Documents filed with any Governmental Authority by 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 (x) the exercise of Company Options outstanding as on behalf of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between after the date of this Agreement and copies of material correspondence relating to any such Company SEC Documents; and (iv) any financial statements (including monthly financial statements), reports, plans or budgets prepared for or used by the Effective Time, management of the Company shall not, nor shall or any Subsidiary of the Company permit in the conduct, management or operation of the Business;
(c) defend and protect its properties and assets from infringement or usurpation in accordance with the Ordinary Course of Business;
(d) maintain its books and records in accordance with past practice;
(e) except in the Ordinary Course of Business, not take any of its Subsidiaries tothe following actions with respect to any Insurance Contract: reduce rates, fail to implement actuarially-based rate increases, extend existing policy terms, or accelerate renewals;
(if) except in the Ordinary Course of Business or to the extent required by Law or any existing Contracts, not enter into, adopt, amend its certificate or terminate any Contract relating to the compensation or severance of incorporation any employee, consultant, or independent contractor of the Company or any Subsidiary of the Company;
(including g) except in the Ordinary Course of Business, not take any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than action which would be reasonably likely to result in (A) borrowings under existing lines the realization of credit (any gross capital loss or under any refinancing losses in an amount of such existing lines) $50,000 or more, or (B) indebtedness owing an adverse impact on its surplus in an amount of $50,000 or more;
(h) not license (other than in the Ordinary Course of Business), transfer, assign, sell, or otherwise encumber any Company Owned IP;
(i) not (A) make any Tax election or adopt or elect any method of Tax accounting, (B) change or revoke any Tax election, (C) change any method of accounting for Tax purposes or Tax accounting period, (D) amend any Tax Return, (E) except as otherwise required by Law, file any Tax Return in a manner inconsistent with past practice, (F) surrender any right to, or guaranties file any claim for, a Tax refund, (G) settle any action, suit, or proceeding or in respect of indebtedness owing toTaxes, (H) enter into any Contract in respect of Taxes with any Governmental Authority, (I) make or request any Tax ruling, (J) enter into any Tax Sharing Agreement or other agreement with respect to Taxes (excluding commercial agreements entered into in the Ordinary Course of Business, the Company primary purpose of which is unrelated to Taxes) or any closing agreement, (iiiK) make settle or compromise any loans claim or advances assessment in respect of Taxes, or (L) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes relating to the Company and the Subsidiaries of the Company, or (M) take any other person other than loans action outside the normal course of business, if any such action would reasonably be expected to have the effect of increasing the Tax liability of the Company or advances between any the Subsidiaries of the Company (or between the Company and any of its Subsidiaries their Affiliates (including Buyer)) for any tax period other than loans a taxable period ending on or advances less than $50,000 made in the ordinary course of business consistent with past practice); (iv) 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 prior to the Company Benefit PlansReference Balance Sheet Date; and
(ixj) enter into not take or permit 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 action that would cause any of the actions changes, events or conditions described in this Section 5.12.07 to occur.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Merger Agreement (DCP Holding CO)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants From and agrees that between after the date hereof until the Closing Date (or, in the case of this Agreement ClosetMaid China and the Effective TimeDeferred Business, unless Parent the Deferred Closing Date), except as set forth in Section 5.01 of the Disclosure Schedule, as expressly permitted by the Transaction Documents, as required by Applicable Law or with Buyer’s advance written consent (which shall otherwise agree not be unreasonably witheld, conditioned or delayed, except that with respect to ClosetMaid China and the Deferred Business, from and after the Closing Date until the Deferred Closing Date, such consent may be withheld, conditioned or delayed in writingBuyer's sole discretion), (i) Seller shall (and shall cause its Affiliates (including the business of Purchased Subsidiaries) to (x) conduct the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, Business in the ordinary course of business and in a manner consistent with prior practicepast practice and Applicable Law and (y) use their respective reasonable best efforts to preserve intact the Business and the Purchased Subsidiaries’ respective business organizations and maintain their respective existing relationships and goodwill with Governmental Authorities, customers, suppliers, creditors, employees, lessors and agents and (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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock Business and the Purchased Subsidiaries, Seller shall not, and shall cause each of its Affiliates (zincluding each Purchased Subsidiary) with respect to not, directly or indirectly:
(a) (A) amend the preferred stock respective articles of Speedchoice incorporation, bylaws or other similar organizational documents of Detroitany Purchased Subsidiary (or Retained Subsidiary that holds any Purchased Asset in any manner materially adverse to Buyer), Inc.; (iiB) split, subdivide, combine or reclassify any of its their outstanding capital stock or issue or authorize or propose the issuance equity interest of any Purchased Subsidiary, (C) permit any Purchased Subsidiary to declare, set aside or pay (x) any noncash dividend or noncash distribution other securities in than to any other Purchased Subsidiary or (y) from and after the Closing Date to the Deferred Closing Date, cash dividend or cash distribution with respect to ClosetMaid China or the Deferred Business, or (D) purchase, redeem or otherwise acquire or issue, sell, transfer, pledge, encumber, assign, convey, surrender, relinquish or otherwise dispose of, in lieu of directly or in substitution for indirectly, any Shares or any other shares of its the capital stock; stock or other equity interests or securities of any Purchased Subsidiary (iii) repurchase or otherwise any options, warrants or rights of any kind to 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 other equity interests or securities of any Purchased Subsidiary or securities which are convertible into any or exchangeable for such shares of its capital stock, stock or other equity interests or securities);
(b) acquire all or any rightsportion of another business, warrants including the purchase of any equity interests or options to acquire capital stock of any such shares Person, whether by merger, stock or convertible securities asset purchase or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.otherwise;
(c) The Company covenants and agrees that between sell, transfer, pledge, encumber, assign, convey, surrender, relinquish, lease, license or otherwise dispose of any Purchased Asset or any asset of the date Purchased Subsidiaries or the Business, or rights in or to any Purchased Asset or any asset of this Agreement and the Effective Time, Purchased Subsidiaries or the Company shall not, nor shall Business or any options or rights of any kind to acquire any Purchased Asset or any asset of the Company permit any of its Purchased Subsidiaries to, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personthe Business, other than (Ai) borrowings under existing lines sales 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) 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 inventory in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement (ii) subject to Section 5.01(q), pursuant to Real Property Leases that are scheduled to expire pursuant to the terms thereof;
(d) assume, create or consented otherwise incur any Lien on any Purchased Asset, any asset of any Purchased Subsidiary or any other Lien with respect to the Business, in writing by Parent; each case, other than Permitted Liens;
(viiie) incur any Liability with respect to any Indebtedness, or issue any debt securities or assume, guarantee or otherwise become responsible for, any Indebtedness of any Person, or make any change loans or advances, in each case, except for individual amounts equal to or less than $100,000 or in the aggregate equal to or less than $350,000, in each case, with respect to the Company Benefit Plans; Business;
(ixf) enter into any leasing or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements with respect commitments for capital expenditures that will not be fully paid prior to the FCC LicensesClosing, providedexcept for unbudgeted capital expenditure commitments not to exceed $100,000 individually or $350,000 in the aggregate;
(g) other than in connection with actions permitted by Section (e), make any loans, advances or capital contributions to, or investments in, any other Person, other than (i) to any other Purchased Subsidiary or (i) amounts that will be repaid in full at or prior to the Company may renegotiate Closing;
(h) (x) subject to (y) and (z) below, enter into, materially amend or materially modify, or terminate, extend or renew any Channel Leases Material Contract, or otherwise waive or release any material rights, claims or benefits of the Business thereunder, other than Contracts with customers or suppliers in the ordinary course of business; , (y) enter into any Contract (including any purchase order) with a customer for any product or service or other goods that are not sold, distributed or produced by the Business as of the date hereof except for any Contract that would not, and would not reasonably be expected to, involve payments over $500,000 annually or $1,000,000 in the aggregate over the term of the Contract or (z) enter into any Contract (including any purchase order) with a supplier or vendor that is not a supplier or vendor under a Material Contract as of the date hereof, except for any Contract that would not, and would not reasonably be expected to, involve payments over $250,000 annually or $500,000 in the aggregate over the term of the Contract;
(i) settle, compromise, pay, discharge, waive, or release, or offer or propose to settle, compromise, pay, discharge, waive, or release, any Action involving the Business (excluding any Existing Litigation Right or any right relating solely to an Excluded Asset or Excluded Liability) or the Purchased Assets, except where the amount paid in settlement or compromise (x) commit does not exceed $100,000 individually or agree $350,000 in the aggregate or (y) is fully covered and paid for by the Seller’s insurance and no further obligations shall exist post-Closing that are applicable to take the Purchased Subsidiaries or the Business, and, in each case, subject to such settlement or compromise not imposing any equitable relief or obligation or restriction on any Purchased Subsidiary, Buyer or its Affiliates or the Business in any way;
(j) with respect to any Purchased Subsidiary, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability, in each case except in the ordinary course of business consistent with past practice or if such action will not have a material effect on the Tax liability of the actions described in this Section 5.1.Purchased Subsidiary (other than for Pre-Closing Income Taxes);
(dk) The Company make any material change in any financial accounting principles or practices, method of accounting or accounting practice or policy, except for any such change required by reason of a concurrent change in GAAP;
(l) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization affecting the Business or any Purchased Subsidiary;
(m) make any changes to the working capital policies applicable to the Business or any Purchased Subsidiary or manage working capital (including by accelerating the receipt of amounts due with respect to any receivables, or lengthening the period for payment of accounts payable), other than in the ordinary course of business of the Business consistent with past practice;
(n) enter into or discontinue any line of business material to the Business or any joint venture or similar arrangement;
(o) enter into a new Contract that would be required to be disclosed on Section 3.22 of the Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from Schedule if it had been entered as of the date of this Agreement through December 31Agreement, 1999 or amend, modify, renew or waive any material rights or obligations under any Related Party Agreement;
(p) fail to maintain in full force and effect all material insurance policies or fail to take commercially reasonable efforts to replace or renew (on terms no less favorable in the aggregate to the Business) material insurance policies existing as agreed of the date hereof Related to the Business;
(q) (A) terminate, materially modify, materially amend, release, enter into, extend, waive any material right under, or discharge any other party thereunder of any of their obligation under any lease in respect of the Leased Real Property (which shall not include any material modifications with respect to the monetary terms or the duration of any lease in respect of the Leased Real Property) or claim thereunder; (B) terminate, modify or amend, release, enter into, extend, waive any material right under, assign or otherwise change any rights under, or discharge any other party thereunder of any of their obligations under, any other Contract Related to the Business; or (C) enter into any Contract that restrains, restricts or limits the ability of the Business to compete with or conduct any business or line of business in any geographic area;
(r) implement any plant closing, mass layoff, or similar events within the meaning of the WARN Act involving any Business Employees, or terminate any group of Business Employees, other than individual terminations for cause;
(s) (i) increase the compensation or benefits of the Business Employees other than increases to non-officer employees in the ordinary course of business consistent with past practice that do not exceed 4% per employee and are not material in the aggregate or as required by the Company and Parent terms of any Business Benefit Plan or any applicable collective bargaining or works council agreement; (the "Projections"). The Company agrees ii) enter into, amend, modify or terminate any (x) Purchased Subsidiary Benefit Plan or (y) Business Benefit Plan that it shall is not incur material operating expenses or capital expendituresa Purchased Subsidiary Benefit Plan (except, in the aggregatecase of clause (y), to the extent that employees of Seller and the Retained Subsidiaries (other than the Business Employees) are eligible to participate in such Business Benefit Plan on substantially the same basis as the Business Employees and such amendment, modification or termination does not increase the per-employee cost under such Business Benefit Plan from the per-employee cost as of the date hereof or, in excess the case of those identified welfare benefit plan renewals, in the Projectionsordinary course of business consistent with past practice where the type and level of such welfare benefits do not materially change), except as required by Law or the terms of any applicable collective bargaining or works council agreement; or (iii) hire or terminate the employment of any Business Employee, except to replace any non-officer employee whose annual compensation is less than $125,000; or
(t) agree or commit to do any of the foregoing. For the avoidance of doubt, except with respect to ClosetMaid China and the Deferred Business, in each case, following the Closing Date, nothing in this Section 5.01 shall restrict Seller or any of its Subsidiaries, in any respect, from taking any action to (i) cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove, and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account of the Business; (iii) settle or otherwise terminate or eliminate intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases or decreases in connection therewith; (iv) in connection with any of clauses (i), (ii) and (iii) above, cause any Purchased Subsidiary to incur indebtedness for borrowed money from another Purchased Subsidiary; and (v) otherwise comply with or give effect to the provisions of this Agreement.
Appears in 1 contract
Conduct of the Business. Pending During the Merger. ------------------------------------------
Interim Period, except (a) The Company covenants and agrees that between as set forth on Section 6.04 of the date Disclosure Schedule, (b) as otherwise expressly contemplated or expressly provided for by this Agreement, (c) as required by applicable Law, (d) as consented to in writing by the Buyer (which consent will not be unreasonably withheld, conditioned, or delayed), or (e) for the use of this Agreement and available cash to repay any Transaction Expenses, or Taxes of the Seller prior to the Effective Time, unless Parent the Seller shall otherwise agree in writing, (i) carry on the business of the Company Companies and its their respective Subsidiaries shall be in the Ordinary Course of Business and substantially in the same manner as previously conducted only inand to the extent consistent therewith, cause the Companies and the Company and its their respective 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 to use all their respective commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact their business organizationsorganizations intact and maintain existing relations and goodwill with Governmental Authorities, to customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the Companies and their current officers and respective Subsidiaries’ present employees and agents, including to preserve the current relationships extent applicable promptly depositing any funds, credits or refunds received by a customer that are to be remitted to patients of such customer into the Excluded Cash Accounts. Nothing in this Section 6.04 is intended to result in the Seller, the Companies or their respective Subsidiaries ceding control to the Buyer of the Company Seller’s, the Companies’ or their Subsidiaries’ basic Ordinary Course of Business and its Subsidiaries with customerscommercial decisions prior to the Closing Date; provided, suppliers and other persons with which that, the Company or its Subsidiaries has significant business relationsSeller shall not, and shall cause the Companies and their respective Subsidiaries not to, take any of the following actions without the prior written consent of the Buyer (iiiwhich consent may be withheld, conditioned, or delayed in the sole and absolute discretion of the Buyer):
(a) amend, restate or otherwise adopt or propose any change in the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including, without limitation, Organizational Documents of the timely filing Companies or any of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.their respective Subsidiaries;
(b) The Company covenants and agrees that between merge or consolidate the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit Companies or any of its their respective Subsidiaries towith any other person or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on their respective assets, operations or businesses;
(ic) declare acquire assets from any other Person with a value or purchase price in excess of $200,000 in any transaction or series of related transactions, other than acquisitions of inventory or raw materials made in the Ordinary Course of Business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any Equity Securities of the Companies or their respective Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares Equity Securities, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such Equity Securities or exchangeable securities;
(e) create or incur any Lien on any assets of the Companies or their Subsidiaries, other than Permitted Liens;
(f) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Companies or their respective Subsidiaries) in excess of $200,000 in the aggregate, or declare, set aside or pay any dividends on dividend or make other distributions (whether in stock, cash, stock property or propertyotherwise);
(g) incur any Debt Amount (excluding income Taxes) or guarantee for such Debt Amount of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Companies or their respective Subsidiaries, except for (i) Debt Amount incurred in the Ordinary Course of Business, not to exceed $200,000 in the aggregate, (ii) indebtedness in replacement of existing Debt Amount on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) intercompany indebtedness solely between and among the Companies and their respective Subsidiaries;
(h) enter into any binding commitment for capital expenditures in excess of $200,000 in the aggregate that are not contemplated by the current budget of the Companies and their respective Subsidiaries (a true, complete and accurate copy of which has been made available to the Buyer) or fail to make any capital expenditures contemplated by such annual budget;
(i) amend, modify, terminate, permit to lapse or waive any material right under any Material Contract (or enter into any Contract that would have been a Material Contract had it been entered into prior to the date hereof except in the Ordinary Course of Business), including any change in pricing or fees thereunder or any issuance of rebates or credits in respect of services performed thereunder;
(j) commence, settle or compromise any then pending or threatened Proceeding or claim or otherwise settle any material liabilities of the Companies or their respective Subsidiaries;
(k) make or change any material election in respect of Taxes, adopt or change any material accounting method in respect of Taxes, settle any material claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, make or request any Tax ruling, enter into any Tax sharing or similar agreement or arrangement (other than commercial agreements entered into in the Ordinary Course of Business, the principal purpose of which is not related to Taxes), enter into any transaction giving rise to deferred gain or loss, or amend, re-file or otherwise modify any Tax Return, in each case, if the effect of such action would affect the Tax liability or Tax position of the Buyer, the Companies or their respective Subsidiaries after the Closing;
(l) (i) increase the base salary or base compensation, bonus opportunities or other compensation of any director, officer or employee of the Companies or any of its capital stocktheir respective Subsidiaries other as required pursuant to existing contractual obligations, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 material change in employment terms for any director, manager, officer, employee earning an annual base salary greater than $200,000, (iii) hire or terminate any employee or engage any independent contractor or other service provider with a required annual compensation in excess of its directors $200,000, (iv) enter into, adopt or officers; (vii) alteramend any employment agreement, amend or create any obligations with respect to compensationchange of control, severance, benefitsbonus, change of control payments transaction-related or similar agreement, (v) pay any other payments bonus related to employees, directors or affiliates arising out 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 transactions contemplated by this Agreement Agreement, or consented to in writing by Parent; (viiivi) 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 than (x) commit pursuant to the terms of any existing agreement or agree employee benefit plan, (y) as may be required by applicable Law, or (z) changes to take plans that generally affect all employees of Mednax, Inc. and its Subsidiaries not specific to the Companies or their employees, adopt, materially amend, materially modify or terminate any employee benefit plan for the benefit of any of the actions described in this Section 5.1.Companies or their respective directors, managers, officers or employees;
(dm) The Company Disclosure Letter sets forth pay any transaction bonuses;
(n) implement any plant closing or layoff employees that could implicate the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from WARN Act;
(o) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material assets, licenses, operations, rights, product lines, businesses or interests therein of the date Business, the Companies or their respective Subsidiaries, including any Equity Security of this Agreement through December 31any of the Companies’ Subsidiaries, 1999 as agreed to by the Company and Parent except (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, i) in the aggregateOrdinary Course of Business, or (ii) transfers solely between and among the Companies and one or more of their respective Subsidiaries; or
(p) agree in excess writing to do any of those identified in the Projections.foregoing
Appears in 1 contract
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants period from the Agreement Date and agrees that between continuing until the date earlier of the termination of this Agreement and the Effective Time:
(a) Company shall, unless Parent and shall otherwise agree in writing, (i) the business cause each of the Company Acquired Companies to, conduct the Business in all material respects solely in the usual, regular 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 in substantially the same manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Acquiror) 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 significant business relations, and (iii) the Company will comply compliance 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.Legal Requirements;
(b) The Company covenants shall, and agrees that between shall cause each of the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries Acquired Companies to, (iA) 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 dividends (x) by a wholly owned Subsidiary all debts and Taxes of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement Acquired Companies and the Effective TimeBusiness when due, the Company shall notsubject to good faith disputes over such debts or Taxes, 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) 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, pay or guaranties of indebtedness owing to, the Company (iii) make any loans or advances to any perform other person other than loans or advances between any Subsidiaries material obligations of the Company Acquired Companies or between the Company Business when due, (C) use commercially reasonable efforts consistent with past practice and any policies to collect accounts receivable of its Subsidiaries (other than loans or advances less than $50,000 made in the Acquired Companies when due and not extend credit outside of the ordinary course of business consistent with past practice); practices, (ivD) merge or consolidate sell the Acquired Companies products consistent with any other entity past practices as to license, service and maintenance terms, incentive programs, and in any transactionaccordance with GAAP requirements as to revenue recognition, or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $100,000 or greater; and (vE) 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 use commercially reasonable efforts consistent with past practice or as expressly contemplated by this Agreement or consented and policies to preserve intact in writing by Parent; (viii) make any change all material respects its present business organizations, keep available the services of its present officers and key employees and preserve in all material respects its relationships with customers, suppliers, distributors, licensors, licensees, and others having material business dealings with it, to the Company Benefit Plansend that its goodwill and ongoing businesses shall be materially unimpaired at the Closing; and
(ixc) enter into any leasing At or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements with respect prior to the FCC LicensesClosing, provided, the Company may renegotiate shall use its reasonable best efforts to use any Channel Leases in the ordinary course amounts of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries Cash on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, hand in excess of those identified in the ProjectionsMinimum Cash Balance to pay off all amounts which, if outstanding and unpaid as of the Closing would constitute Company Debt and Transaction Expenses.
Appears in 1 contract
Samples: Merger Agreement (Rapid7, Inc.)
Conduct of the Business. Pending the MergerClosing. ------------------------------------------Seller covenants that until the Closing, each of the Subsidiaries shall comply, and Seller shall cause the Subsidiaries to comply, with the provisions set forth below:
(a) The Company covenants Each Subsidiary shall operate its respective Business in the ordinary course;
(b) Seller shall promptly notify Buyer of, and agrees furnish to Buyer any information that between Buyer may reasonably request with respect to, the occurrence of any event or the existence of any fact that may result in the representations and warranties of Seller not being true if they were made at any time prior to or as of the date of this Agreement and the Effective TimeClosing;
(c) Except as set forth in Schedule 6.2, unless Parent neither the Seller nor any of its Subsidiaries shall otherwise agree in writing, (i) the business grant or agree to grant any bonuses to any employee, officer, director, representative or agent 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 practiceSubsidiary, (ii) grant any general increase in the Company rates of salaries or compensation of employees, officers, directors, representatives or agents of any
(d) No Subsidiary shall amend its certificate of incorporation or by-laws and neither the Seller nor any of the Subsidiaries shall enter into any merger or consolidation agreement involving any Subsidiary or its assets;
(e) Neither the Seller nor any of its Subsidiaries shall authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any class or any other securities or equity equivalents of any Subsidiary or amend any of the terms of any such securities or agreements;
(f) Seller shall use all commercially reasonable best efforts to maintain and protect preserve the FCC Licenses and Channel LeasesBusiness of each Subsidiary intact, to preserve substantially intact their business organizations, to keep retain each Subsidiary's present employees so that they will be available after the services of their current officers and employees Closing and to preserve the current maintain each Subsidiary's existing relationships of the Company and its Subsidiaries with customers, suppliers and others so that those relationships will be preserved after the Closing;
(g) None of the Subsidiaries shall sell, assign or dispose of any of its material assets or properties, tangible or intangible, or incur or assume any liabilities or enter into any
(h) None of the Subsidiaries shall assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other persons with which the Company person or entity or make any loans, advances or capital contributions to or investments in any other person or entity;
(i) Seller and its Subsidiaries has significant business relations, shall maintain in full force and (iii) the Company will comply effect all insurance currently maintained as set forth 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.Schedule 4.21;
(bj) The Company covenants and agrees that between Neither the date of this Agreement and the Effective Time, the Company shall not, Seller nor shall the Company permit any of its Subsidiaries toshall take, (i) declare or pay any dividends on agree in writing or make other distributions (whether in cashotherwise to take, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company actions described in this Section 6.2 or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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; any representation or (vi) take any action warranty inaccurate or untrue or that would, or could reasonably be expected to, would result in any of the conditions set forth in Article VI VIII hereof not being satisfied.;
(ck) The Company covenants Seller and agrees that between its Subsidiaries shall comply in all material respects with all Applicable Laws including, without limitation, Environmental Laws;
(l) Each Subsidiary shall maintain the books of account and records in the usual, regular and customary manner consistent with practices employed prior to the date hereof;
(m) Seller and each Subsidiary shall not implement or adopt (i) any change in its accounting methods or principles or the application thereof (including depreciation lives) or (ii) any material change in its tax methods or principles or the application thereof (including depreciation lives); and
(n) No Subsidiary shall split, combine or reclassify any shares of this Agreement and the Effective Timeits capital stock, the Company shall notdeclare, nor shall the Company permit set aside or pay any dividends or other distributions in respect of its capital stock or redeem, purchase or otherwise acquire 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) 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) 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 5.1capital stock.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants and agrees that between period from the date of this ----------------------- Agreement and continuing through the Effective TimeAdditional Closing, unless Parent shall otherwise agree in writing, (i) the business of Company agrees as to the Company and its Subsidiaries subsidiaries that (except to the extent that Purchaser shall be conducted only in, and the otherwise consent in writing):
4.1.1 The Company and each of its Subsidiaries subsidiaries shall not take any action except incarry on its business in the usual, the regular and ordinary course of business in substantially the same manner as previously conducted 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 Leasespreserve intact its present business organization, to preserve substantially intact their business organizations, to keep available the services of their its current officers and employees and to preserve the current its relationships of the Company and its Subsidiaries with customers, suppliers and other persons others having business dealings with which the Company or its Subsidiaries has significant business relations, and (iii) 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 Actit.
(b) 4.1.2 The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company it permit any of its Subsidiaries subsidiaries to, : (i) declare declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock (whether in cash, stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.property or any combination thereof); (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; or (iii) redeem, repurchase 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 securities or any securities convertible into any such shares of its capital stocksubsidiaries, or any rights, warrants or options to acquire any such shares or convertible except as required by the terms of its securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of on the date hereof, as contemplated by this Agreement or as contemplated by employee benefit and dividend reinvestment plans as in effect on the date hereof.
4.1.3 The Company shall not, and shall cause its subsidiaries not to, amend or propose to amend its Certificate of this Incorporation or By-Laws or, except as contemplated by Section 4.8 hereof or the Standstill Agreement, (y) exercise elect or appoint any person a director of warrants and (z) conversion of Convertible Preferred Stock; (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 them who is not serving as such on the conditions set forth in Article VI not being satisfieddate hereof.
(c) 4.1.4 The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company it permit any of its Subsidiaries tosubsidiaries to acquire or agree to acquire by merging or consolidating with, (i) amend its certificate or by purchasing a substantial equity interest in or a substantial portion of incorporation (including the assets of, or by any certificate of designations attached thereto) other manner, any business or bylaws any corporation, partnership, association or other equivalent organizational documents; (ii) incur any indebtedness business organization or division thereof, except for borrowed money or guaranty any such indebtedness transactions which involve aggregate consideration 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) 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 500,000.
4.1.5 Other than with respect to alterations or amendments made with respect to non-officers and non-directors dispositions in the ordinary course of business consistent with past practice which are not material, individually 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess to the Company and its subsidiaries taken as a whole and dispositions of those identified in Real Property that have been approved by the ProjectionsBoard of Directors of the Company prior to the date hereof, and except for any other such transactions which involve aggregate consideration of less than $500,000, the Company shall not, nor shall it permit any of its subsidiaries to, sell, lease, encumber or otherwise dispose of, or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of, any of its assets.
4.1.6 The Company shall not authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its subsidiaries.
4.1.7 The Company shall not, and shall not permit any of its subsidiaries to, enter into any agreement providing for the acceleration of payment or performance or other consequences as a result of any of the transactions contemplated by this Agreement.
4.1.8 The Company shall not, and shall not permit any of its subsidiaries to, enter into any new lines of business or otherwise make material changes to the operation of its business.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Chart House Enterprises Inc)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the termination of this Agreement and the Effective Time, unless except (a) as set forth on Section 5.01 of the Company Disclosure Schedules, (b) if Parent shall otherwise agree have consented in writingwriting (which consent shall not be unreasonably withheld, conditioned or delayed), or (c) as expressly contemplated by this Agreement, (i) the Company shall use its commercially reasonable efforts to conduct its business and the businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business in substantially the manner heretofore conducted, pay its debts and Taxes when due (subject to Parent’s review and consent to the filing of any Tax Return, to the extent specifically required under this Agreement), and use commercially reasonable efforts to preserve substantially intact the present business organizations of the Group Companies, keep available the services of the present officers and employees of the Group Companies (provided that the Group Companies shall have no obligation to pay any bonus, incentive or other compensation to any such officer or employee, other than the payment by the Group Companies of base salary in a manner the ordinary course consistent with past practice or any bonus, incentive or other compensation which the Group Companies have agreed prior practiceto the date of this Agreement to pay) and preserve in all material respects the relationships of the Group Companies with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them; provided, that notwithstanding the foregoing or clause (ii) of this Section 5.01, the Company may use available cash to repay any Indebtedness or to make one cash dividend prior to the Effective Time (such cash dividend shall be referred to herein as the “Permitted Cash Dividend”); and (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 significant business relations, and (iii) 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.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries to:
(A) except for issuances as may result from the conversion of Company Preferred Stock, the exercise of Options or Warrants or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell or deliver (ior authorize or propose the issuance, sale or delivery of) declare any of its or any of its Subsidiaries’ equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(B) effect any recapitalization, reclassification, equity split or like change in its capitalization;
(C) cause or permit any amendments to any Organizational Document of any Group Company;
(D) other than the Permitted Cash Dividend, declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of its or any of its capital stockSubsidiaries’ equity interests, except for dividends or directly or indirectly make any redemption or purchase of its or any of its Subsidiaries’ equity interests (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) other than with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise from former employees of a Group Company Options outstanding pursuant to agreements in effect as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.hereof);
(cE) The Company covenants and agrees that between the date of this Agreement and the Effective Timesell, the Company shall not, nor shall the Company permit assign or transfer any of its Subsidiaries or its Subsidiaries’ tangible assets, except for sales of inventory or products in the ordinary course of business consistent with past practice;
(F) sell, assign, transfer or license any Owned Intellectual Property or Licensed Intellectual Property, except for non-exclusive licenses to end-users granted in the ordinary course of business consistent with past practice;
(G) amend or modify in any material respect and/or voluntarily terminate any Material Contract;
(H) enter into or materially amend, modify and/or voluntarily terminate any Contract that would constitute a Material Contract if it had been entered into as of the date hereof;
(I) make any capital investment in, or any loan to, any other Person in excess of $100,000 in the aggregate, except pursuant a Contract for which a Group Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(iJ) amend its certificate make any capital expenditures or commitments therefor in excess of incorporation $100,000, except pursuant a Contract for which a Group Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(including K) make any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 loan to, or guaranties of indebtedness owing to, the Company (iii) make any loans or advances to enter into any other person other than loans or advances between any Subsidiaries of the Company or between the Company and transaction with, any of its Subsidiaries officers, employees or any party described in Section 3.18 outside the ordinary course of business consistent with past practice except pursuant to a Contract for which a Group Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(L) except as provided by the terms of any Company Employee Benefit Plan or to the extent required by applicable Law, in each case as in effect on the date hereof, (1) grant or announce any incentive awards or any increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers, directors or other service providers; (2) enter into or amend any employment, change in control, severance, retention, consulting or similar contract with any officer, employee, consultant or other agent of any Group Company (other than loans or advances less than $50,000 made offer letters providing for at-will employment without post-termination obligations with newly-hired employees who are hired in the ordinary course of business consistent with past practice); or (iv3) merge terminate or consolidate with materially amend any other entity Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof;
(M) waive any transactionstock repurchase rights, 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) alteraccelerate, amend or create change the period of exercisability of options or warrants, or reprice options granted under any obligations employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(N) except for the hiring of new employees below director level of seniority consistent with respect past practice hire, offer to compensation, severance, benefits, change of control payments hire or terminate any other payments to employees, directors or affiliates of the Company encourage any employees to resign from any Group Company;
(O) commence or its Subsidiariessettle any claim or Action, other than with respect to alterations or amendments made with respect to non-officers and non-directors settlements in the ordinary course of business consistent with past practice practices involving only monetary remedies with a value not in excess of $25,000 individually or as expressly contemplated by this Agreement $100,000 in the aggregate and not involving any Owned Intellectual Property or consented Licensed Intellectual Property;
(P) waive or release any material right or claim of any Group Company;
(Q) cancel any third-party indebtedness owed to any Group Company;
(R) incur any Indebtedness in writing by Parent; excess of $100,000 in the aggregate, amend the terms of any outstanding loan agreement or issue or sell any debt securities, guarantee the Indebtedness of any Person or encumber any assets of any Group Company (viiiexcept for Permitted Liens);
(S) make cancel or amend any change insurance policy of any Group Company;
(T) grant any discounts, credits or rebates to the any customer or supplier of any Group 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 than in the ordinary course of businessbusiness consistent with past practices; (U) change the Company’s accounting policies or procedures (xother than as required by GAAP), including with respect to reserves for doubtful accounts, or payment or collection policies or practices;
(V) commit revalue any of its assets (whether tangible or intangible) (other than as required by GAAP), including writing down the value of inventory or writing off notes or accounts receivable;
(W) enter into any agreement to purchase or sell any interest in real property or grant any security interest in any real property;
(X) acquire or agree to take acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(Y) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any material agreement primarily related to Taxes, settle any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any income tax or other material Tax Return unless a copy of such Tax Return has been made available for review a reasonable time prior to filing and Parent has approved such Tax Return (such approval not to be unreasonably withheld); or
(Z) take, commit, or agree in writing or otherwise to take, any of the actions described in this Section 5.15.01(b)(ii).
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Merger Agreement (Fluidigm Corp)
Conduct of the Business. Pending From the Merger. ------------------------------------------
Execution Date until the Closing (athe “Pre-Closing Period”), except (x) The Company covenants and agrees that between the date as set forth on Schedule 5.01, (y) as expressly required by any other provision of this Agreement or required by Applicable Law, or (z) for reasonable actions taken to ensure compliance by Seller and the Effective Timeits Subsidiaries and their respective directors, officers, employees, consultants, suppliers and customers with any COVID-19 Measures, unless Parent Purchaser shall otherwise agree in writingwriting (which agreement shall not be unreasonably withheld, (i) the business of the Company and its Subsidiaries shall be conducted only indelayed or conditioned), Seller shall, 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 significant business relations, and (iii) 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.
(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 cause its Subsidiaries to, (i) declare or pay any dividends on or make other distributions conduct the Business in the Ordinary Course, (whether in cashii) use their respective commercially reasonable efforts to preserve substantially intact the goodwill and current relationships of Seller and its Subsidiaries with significant customers, stock or property) in respect of any of its capital stocksuppliers, except for dividends (x) by a wholly owned Subsidiary distributors, employees of the Company Business, Governmental Authorities and other Persons with which it has material business dealings, and (iii) use their respective commercially reasonable efforts to the Company or another wholly owned Subsidiary of the Company, (y) preserve substantially intact its business organizations with respect to the Convertible Preferred Stock and (z) with respect to Business. Without limiting the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as generality of the date of this Agreementforegoing, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than except (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or as set forth on Schedule 5.01, (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) 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 required by Applicable Law, (C) for reasonable actions taken to in writing ensure compliance by Parent; Seller and its Subsidiaries and their respective directors, officers, employees, consultants, suppliers and customers with any COVID-19 Measures, or (viiiD) make any change for actions taken pursuant to the Company Benefit Plans; written consent of Purchaser (ixwhich consent shall not be unreasonably withheld, delayed or conditioned), Seller Parties shall not:
(a) enter sell, lease or otherwise transfer, or create or incur any Lien, other than Permitted Liens, on any of the material Purchased Assets, other than sales of products and services in the Ordinary Course;
(b) sell, lease, transfer or otherwise dispose of any material Transferred Business Intellectual Property Rights or Licensed IPR, or grant to any third Person any license or similar right under any material Transferred Business Intellectual Property Rights or Licensed IPR, other than non-exclusive licenses granted in the Ordinary Course or (in the case of Licensed IPR) licenses of Licensed IPR that do not contravene, conflict with or otherwise impair the grant of the full scope of rights to be granted to Purchaser under the Intellectual Property License Agreement, or allow to lapse, cancel or abandon, including by failure to pay the required fees in any jurisdiction, any material Registered IP or material Licensed IPR that is registered, filed or issued under the authority of any Governmental Authority;
(c) amend or modify in any material respect or terminate any Material Contract or Designated Shared Contract (to the extent related to the Business, but excluding any such action taken in connection with the entry into a Replacement Contract) or otherwise waive, release or assign any leasing of its material rights, claims or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements benefits with respect to any Material Contract or Designated Shared Contract (to the FCC Licensesextent related to the Business, but excluding any such action taken in connection with the entry into a Replacement Contract), in each case, other than in the Ordinary Course (provided, the Company may renegotiate any Channel Leases in the ordinary course of business; or (x) commit or agree to take any that no Contract of the actions type described in this Section 5.1.3.07(a)(ii), Section 3.07(a)(vii), Section 3.07(a)(xii), Section 3.07(a)(xiii) or Section 3.07(a)(xiv) shall be entered into without the prior written consent of Purchaser) or unilateral amendments by a counterparty to a Government Contract;
(d) The Company Disclosure Letter sets forth enter into a Contract if such Contract would have been a Material Contract as of the projected operating expenses Execution Date, other than Contracts entered into in the Ordinary Course; provided, that no Contract of the type described in Section 3.07(a)(ii), Section 3.07(a)(vii), Section 3.07(a)(xii), Section 3.07(a)(xiii) or Section 3.07(a)(xiv) shall be entered into without the prior written consent of Purchaser;
(e) cancel, compromise, release or assign any Accounts Receivable of the Business by a third party or any claims against any third party held by the Business, in each case that would otherwise constitute Purchased Assets, other than in the Ordinary Course;
(f) except as required by Applicable Law or the terms of any Employee Plan in existence on the date hereof, as applicable (i) increase the severance or termination compensation or benefits payable under any existing severance or termination pay policy or employment agreement with any Business Employee, (ii) establish, adopt or amend in any material respect any Employee Plan, or any arrangement that would have been an Employee Plan had it been entered into prior to this Agreement, in respect of any Business Employee (other than entering into offer letters and capital expenditures standard compensation and benefit arrangements with newly hired Business Employees whose annual base compensation is less than $200,000 and other than any such actions in the Ordinary Course that apply uniformly to all similarly situated employees of Seller Parties that would not, individually or in the aggregate, reasonably be expected to result in any material Liability to Purchaser or its Affiliates following the Closing), (iii) increase the cash compensation payable to any Business Employee, other than Ordinary Course increases in base compensation not to exceed four and a half percent (4.5%) in the aggregate and ten percent (10%) for Company and any individual Business Employee, (iv) with respect to any existing Business Employee, grant any new awards, or amend or modify the terms of any outstanding awards, under any Employee Plan, (v) with respect to any Business Employee, take any action to accelerate the vesting or lapsing of restrictions or payment, (vi) fund or in any way secure the payment of compensation or benefits under any Employee Plan, other than any such actions in the Ordinary Course that apply uniformly to all similarly situated employees of Seller Parties that would not, individually or in the aggregate, reasonably be expected to result in any Liability to Purchaser or its Subsidiaries on following the Closing, (vii) hire any Business Employee whose annual base compensation exceeds $200,000, other than any Business Employee hired to replace a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company departing Business Employee provided such replacement Business Employee’s total compensation and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expendituresbenefits are substantially comparable, in the aggregate, to such departing Business Employee, or (viii) terminate, other than for cause, or transfer the employment of any Business Employee whose annual base compensation exceeds $100,000; provided, that Seller may terminate the employment of up to 10 Business Employees whose annual base compensation exceeds $100,000 but is less than $200,000;
(g) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization, with respect to any Business Employee;
(h) commence, settle or offer to settle, any Proceeding involving the Business (other than for any Proceeding involving a settlement of $5,000,000 or less in the aggregate as its sole remedy which is paid in full prior to Closing);
(i) (i) make, change or revoke any Tax election, (ii) file any amended Tax Return, (iii) enter into any closing agreement, (iv) settle or compromise any Tax claim or assessment, or (v) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes; in each case to the extent related to the Purchased Assets; provided, however, that for the avoidance of doubt, for purposes of this Section 5.01(i) it shall be deemed unreasonable for Purchaser to withhold consent where such action would not reasonably be expected to adversely affect Purchaser with respect to the Purchased Assets or the Business in a Post-Closing Tax Period;
(j) fail to make any material capital expenditures necessary to operate the Business in the Ordinary Course (including, in each case, the timing of such payments);
(k) dispose of or permit to lapse any material Permit necessary to operate the Business, except in the Ordinary Course;
(l) make any loans, advances, guarantees or capital contributions to or investments in any Person in excess of those identified $5,000,000 in the Projectionsaggregate that would constitute a Purchased Asset;
(m) incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security, in each case that would be an Assumed Liability at the Closing, except for (i) Indebtedness for borrowed money incurred in the Ordinary Course, not to exceed $2,500,000 in the aggregate or (ii) Indebtedness in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more beneficial to the Business than the Indebtedness being replaced; provided that any Indebtedness that is extinguished in full prior to, or concurrently with, the Closing shall not be deemed to be a breach of this provision (and it being understood that nothing in this Section 5.01(m) shall restrict in any way Seller’s ability to incur Indebtedness or issue debt securities, warrants or rights in each case unless and to the extent such Indebtedness, debt securities, warrants or rights would be required to be assigned to and assumed by Purchaser hereunder);
(n) make any changes with respect to its accounting policies or procedures that would reasonably be expected to adversely affect any Purchased Assets or the Business, except (i) as may be initiated or adopted by Seller with respect to Seller’s business generally or (ii) as required by changes in Applicable Law or GAAP (or any interpretation thereof); and
(o) agree, resolve or commit to do any of the foregoing with respect to the Business. Nothing contained in this Agreement is intended to give Purchaser, directly or indirectly, the right to control or direct the Business’s operations prior to the Closing Date. Prior to the Closing Date, Seller shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the Business.
Appears in 1 contract
Conduct of the Business. Pending the MergerClosing. ------------------------------------------From the date hereof to the Closing Date, except in connection with the transactions contemplated by this Agreement, or as otherwise consented to in writing by Buyers (which consent shall not be unreasonably withheld or delayed),
(a) The Seller shall cause each Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, to (i) conduct its business only in the business ordinary course, consistent with the past practice of the such Company and its Subsidiaries shall be conducted only in, and substantially in accordance with the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practiceBusiness Plan, (ii) the Company keep in full force and effect its Subsidiaries shall corporate existence, (iii) comply in all material respects with all Material Contracts, (iv) 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 retain its employees and to preserve maintain its business relationships with customers and suppliers and others having business relationships with it, (v) maintain all the current relationships assets and properties owned or leased by such Company in good condition and repair, ordinary wear and tear excepted, (vi) maintain in full force and effect all insurance policies set forth in Section 4.15 of the Company and its Subsidiaries Disclosure Schedule or insurance policies with customersresponsible companies, suppliers and other persons with which the Company or its Subsidiaries has significant business relationscomparable in amount, scope, and coverage thereto, (iiivii) the Company will duly comply in all material respects with all applicable Laws statutes, laws, ordinances, rules, orders and regulations wherever its business is conductedof any governmental authority or instrumentality, includingdomestic or foreign, without limitation, the timely filing (viii) promptly deliver to Buyers true and complete copies of all reports, forms or other documents with the FCC monthly and with the SEC required pursuant quarterly financial statements pertaining to the Securities Act or the Exchange Act.
(b) The such 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) reports with respect to the Convertible Preferred Stock activities of such Company which are prepared by or for Seller or such Company at any time from the date hereof until the Closing Date, and any other similar materials which Buyers may reasonably request, (zix) with respect to the preferred stock promptly notify Buyers of Speedchoice of Detroitany circumstance, Inc.; (ii) splitevent, combine or reclassify action, by any of its capital stock the Companies, Coastal, Seller, Coastal Sub or issue or authorize or propose the issuance of any other securities in respect ofotherwise, in lieu of or in substitution for shares of its capital stock; (iiia) repurchase or otherwise acquire any shares of its capital stock; (iv) issuewhich, 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 (x) the exercise of Company Options outstanding as of if known at the date of this Agreement, would have been required to be disclosed in or pursuant to this Agreement, or (yb) exercise the existence, occurrence, or taking of warrants and (z) conversion which would result in any of Convertible Preferred Stock; (v) willfully take any action that would make the Company's representations and warranties set forth of Coastal or Seller in Article III this Agreement not being true and correct in all material respectsrespects immediately thereafter or at Closing, and, with respect to clause (B), Coastal and Seller shall use commercially reasonable efforts to remedy the same, and (x) use commercially reasonable efforts to acquire the "Unelco Tract" and to protect and maintain all federal and state leases relating to the Soldier Creek Mine in accordance with the pending application; or (vi) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied.and
(cb) The Seller shall cause each Company covenants and agrees that between not to (i) enter into any Material Contract not in the date ordinary course of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries tobusiness, (iii) amend its certificate or articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personbylaws, 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 capital expenditures, 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 maintenance capital expenditures made in the ordinary course of business consistent with past practicebusiness, which, in the aggregate, exceed the amounts specified in Section 4.9(e); , (iv) make any charitable donations of cash or other assets other than in the ordinary course of business, (v) incur, assume, or guarantee any indebtedness or liability for or in respect of borrowed money, (vi) create or permit the creation or attachment of any security interests, pledges, claims, liens, charges, encumbrances, or other rights or interests of any other Person except in the ordinary course of business, (vii) prepay any liabilities or obligations other than in the ordinary course of business and as contemplated in Section 2.2, (viii) issue any equity interests, or merge or consolidate with any other entity in any transactionPerson, or sell acquire any of the equity interests, partnership or joint venture interests, or business or assets in a single transaction any other Person, or series of transactions in which the aggregate consideration is $100,000 (ix) declare, set aside, or greater; (v) change its accounting policies except as required by GAAP; (vi) make pay any change in employment terms for dividends or distributions on any of its directors equity interests, or officers; (vii) alterrepurchase, amend redeem, or create otherwise acquire 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 5.1such equity interests.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending The Seller covenants and agrees with the Merger. ------------------------------------------Buyer that from and after the date hereof until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, it shall:
(a) The Company covenants operate the Transferred Assets only in the usual, regular and agrees ordinary manner with a view to maintaining the goodwill that between the date of this Agreement and Seller now enjoys and, to the Effective Time, unless Parent shall otherwise agree 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 extent consistent with prior practicesuch operation, (ii) the Company and its Subsidiaries shall will use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leasespreserve intact its present business organization, to preserve substantially intact their business organizations, to keep available the services of their current officers and its employees and to preserve the current relationships of the Company and its Subsidiaries relationship with its customers, suppliers suppliers, jobbers, distributors and other persons Persons having business relations with which the Company or its Subsidiaries has significant business relations, and (iii) 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.it;
(b) The Company covenants use all reasonable efforts to maintain the Transferred Assets in a state of repair, order and agrees condition consistent with its usual past practice;
(c) maintain its books of account and records in the usual, regular and ordinary manner, in accordance with the Seller's usual accounting practices applied on a consistent basis;
(d) comply in all respects with all statutes, laws, orders and regulations applicable to it and the Transferred Assets;
(e) not sell, assign, transfer, lease or otherwise dispose of any of the Transferred Assets except for dispositions of Inventories for value in the usual and ordinary course of business;
(f) preserve and maintain all rights that between it now enjoys in and to the date Proprietary Rights and not sell, assign, transfer, lease or otherwise dispose of any Proprietary Rights other than to the Buyer pursuant to the terms of this Agreement and the Effective TimeAgreement;
(g) not mortgage, the Company shall not, nor shall the Company permit pledge or otherwise create a security interest in any of its Subsidiaries tothe Transferred Assets or permit there to be created or exist any Liens thereon that would not be released upon the transfer of the Transferred Assets to the Buyer pursuant to this Agreement;
(h) not enter into any contract, commitment or lease in relation to the Transferred Assets that is out of the ordinary course of business;
(i) declare not amend or pay modify any dividends on or make other distributions of the Entitlements;
(whether in cash, stock or propertyj) in respect not consent to the termination of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary the Entitlements or waive any of the Company Seller's rights with respect thereto;
(k) not permit any insurance policy naming it as a beneficiary or a loss payee relating to the Company Seller or another wholly owned Subsidiary the Transferred Assets to be canceled or terminated or any of the Companycoverage thereunder to lapse unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and effect;
(l) pay when due all accounts payable, all payments required by any of the Entitlements and all Taxes other than Taxes that are being contested in good faith and for which adequate reserves against the Transferred Assets exist and which would not result in a Lien being imposed on any of the Transferred Assets; and
(ym) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred or that shall have been threatened (or any development that shall have occurred or that shall have been threatened involving a prospective change) with respect to the Convertible Preferred Stock and (z) with respect to Seller or the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully take any action Transferred Assets 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 to have a material or adverse effect on the conditions set forth in Article VI Seller or the Transferred Assets whether or not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 occurring in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Weatherford International Inc /New/)
Conduct of the Business. Pending Seller shall take such actions as shall be necessary to ensure that, up to and including the Merger. ------------------------------------------Closing Date, the Business shall be conducted as follows (except to the extent required by the terms of this Agreement or as may be consented to in writing by Purchaser, such consent not to be unreasonably withheld or delayed):
(a) The Company covenants and agrees that between the date of this Agreement and Companies shall conduct the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted Business only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course Ordinary Course of business Business and in a manner consistent accordance 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 significant business relations, and (iii) 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.Law;
(b) The Company covenants and agrees none of the Companies shall amend or modify any Material Contract or enter into any Contract that between would have been a Material Contract if such Contract had been in effect on the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, Agreement;
(ic) 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 dividends (x) by a wholly owned Subsidiary none of the Company to the Company Companies shall issue, sell or another wholly owned Subsidiary otherwise dispose of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue equity interests, or authorize grant any options, warrants or propose the issuance of other rights to purchase or obtain (including upon conversion, exchange or exercise) any other securities in respect of, in lieu of or in substitution for shares of its capital stock; ;
(d) each of the Companies shall (i) use its commercially reasonable efforts to preserve its business organization and goodwill, keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii) subject to applicable Laws, confer with representatives of Purchaser regarding the general status of ongoing operations as reasonably requested by Purchaser and (iii) repurchase 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully not 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 wouldrender, or that reasonably could reasonably be expected toto render, result any representation or warranty made by Seller in any this Agreement that is not expressly made as of a specified date other than the conditions set forth in Article VI not being satisfied.
(c) The Company covenants Closing Date untrue on the Closing Date as though then made and agrees that between as though the Closing Date had been substituted for the date of this Agreement and in such representation or warranty, including any actions referred to in Section 3.8;
(e) none of the Effective TimeCompanies shall (i) make or rescind any material express or deemed election relating to Taxes, the Company shall not(ii) amend any Return, nor shall the Company permit (iii) settle or compromise any Litigation relating to Taxes or (iv) change any of its Subsidiaries tomethods of reporting income or deductions for federal, state, local or foreign income Tax purposes from those employed in the preparation of the last filed federal, state, local or foreign income Tax Returns, provided, however, that Seller shall be entitled to prepare and file Returns for Tax periods ending on or prior to the Closing Date for which Seller is subject to indemnification obligations under Section 9.1(a), which Returns shall be subject to review and comment by Purchaser and which Returns shall not be filed with the applicable Governmental Entity without the consent of Purchaser, which consent shall not be unreasonably withheld;
(if) amend none of the Companies shall change any of its certificate methods of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personaccounting in effect on the Latest Balance Sheet Date, other than changes required by HK GAAP; and
(Ag) borrowings under existing lines none of credit (the Companies shall cancel or under any refinancing of such existing lines) or (B) indebtedness owing toterminate, or guaranties of indebtedness owing topermit the cancellation or termination of, 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) 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 insurance policy under 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 Acquired Assets or Acquired Companies is insured or allow any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in this Section 5.1full force and effect.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Acquisition Agreement (Imation Corp)
Conduct of the Business. Pending From the Merger. ------------------------------------------date of the Agreement to and including the Closing Date, (1) except with respect to any obligations expressly set forth in this Agreement and in accordance with applicable Law, (2) with the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, and (3) except as set forth on Schedule 6.1 hereto:
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business each of the Company and the Subsidiaries will conduct its Subsidiaries shall be conducted business only in, and in the Ordinary Course of Business;
(b) neither the Company nor any Subsidiary will amend or modify any Material Contract in any manner materially adverse to the Company or such Subsidiary;
(c) each of the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, will (iii) the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain preserve its business organization and protect the FCC Licenses and Channel Leasesgoodwill, to preserve substantially intact their business organizations, to keep available the services of their current officers and its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii), subject to preserve applicable Laws, confer with representatives of Buyer relating to the current relationships general status of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, ongoing operations as reasonably requested by Buyer and (iii) not take any action that would render any representation or warranty made by the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedthis Agreement untrue at the Closing as though then made, including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant including any actions referred to the Securities Act or the Exchange Act.in Section 4.10;
(bd) The Company covenants and agrees that between the date of this Agreement and the Effective Time, neither the Company shall not, nor shall the Company permit any Subsidiary will change in any material respect any of its Subsidiaries tomethods of accounting in effect on March 31, 2006, other than changes required by GAAP (or, with reference to non-U.S. Subsidiaries, other applicable accounting standards);
(e) neither the Company nor any Subsidiary will cancel or terminate its current insurance policies or allow any of the coverage thereunder to lapse, unless replaced by a policy providing substantially similar coverage to the policy being replaced;
(f) neither the Company nor any Subsidiary will (i) declare amend or pay any dividends on propose to amend its certificate of incorporation or make other distributions (whether in cashby-laws, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify its outstanding capital stock, (iii) declare, set aside or pay, any dividend or distribution payable in stock or property, or (iv) repurchase, redeem or otherwise acquire any of its outstanding shares of capital stock stock;
(g) neither the Company nor any Subsidiary will issue, sell, pledge or issue dispose of, or authorize agree to issue, sell, pledge or propose the issuance dispose of, any additional shares of, or any options, warrants or rights of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise kind to 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 Subsidiaries' capital stock, or any rightsdebt or equity securities convertible into, warrants exchangeable for or options exercisable for such capital stock, or enter into any Contract with respect to acquire any such shares or convertible securities or any stock appreciation rightsof the foregoing, phantom stock plans or stock equivalents, other than the issuance except for issuances of shares of Company Common Stock upon (x) Shares pursuant to the exercise of Company Stock Options or Warrants outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.;
(ch) The Company covenants and agrees that between the date of this Agreement and the Effective Time, neither the Company shall not, nor shall the Company permit any of its Subsidiaries to, Subsidiary will (i) amend its certificate of incorporation (including incur or become contingently liable with respect to any certificate of designations attached thereto) Other Indebtedness other than the Other Indebtedness shown in the Disclosure Schedule or bylaws or other equivalent organizational documents; otherwise disclosed in the Financial Statements, (ii) incur redeem, purchase, acquire or offer to purchase or acquire any indebtedness for borrowed money shares of its capital stock, Stock Options or guaranty any such indebtedness of another personWarrants, 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 acquisition of any assets or advances businesses or any other capital expenditures other than expenditures for fixed or capital assets in the Ordinary Course of Business, (iv) sell, pledge, dispose of or encumber any assets or businesses other than sales in the Ordinary Course of Business, (v) loan, advance funds or make any investment in or capital contribution to any other person Person other than loans to any Subsidiary, or advances between (vi) enter into any Subsidiaries Contract with respect to any of the foregoing;
(i) neither the Company nor any Subsidiary will enter into any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or between the Company and any of its Subsidiaries (other than loans the Merger and the Transactions);
(j) neither the Company nor any Subsidiary will alter the corporate structure or advances less ownership of any of the Company's Subsidiaries;
(k) neither the Company nor any Subsidiary will enter into any sale, lease or license or offer to extend any Encumbrance (except for Permitted Encumbrances) in respect of any of its assets, other than $50,000 made in the ordinary course Ordinary Course of business consistent with past practice); Business;
(ivl) merge neither the Company nor any Subsidiary will (i) grant any severance, retention or consolidate with any other entity in any transactiontermination pay to, or sell amend any business existing severance, retention or assets termination arrangement with, any current or former director or officer of the Company or any of its Subsidiaries (other than pursuant to agreements currently in a single transaction effect), or series except in the Ordinary Course of transactions in which Business, any employee of the aggregate consideration is $100,000 Company or greater; any of its Subsidiaries, (vii) change its accounting policies except as required by GAAP; (vi) make Law or agreements or Plans or policies currently in effect, increase or accelerate the payment or vesting of, benefits payable under any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations with respect to compensation, existing severance, benefitsretention or termination pay policies or employment agreements, change of control payments (iii) enter into or amend any employment, consulting, deferred compensation or other payments to employeessimilar agreement with any director, directors officer, consultant or affiliates employee of the Company or any of its Subsidiaries, (iv) establish, adopt or amend (except as required by applicable Law) any collective bargaining agreement, bonus, profit-sharing, thrift, pension, retirement, post-retirement medical or life insurance, retention, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any present or former director, officer or employee, or any beneficiaries thereof, of the Company or any of its Subsidiaries or (v) increase the compensation, bonus or other benefits payable to any officer or employee of the Company or any of its Subsidiaries, other than in the Ordinary Course of Business, or any director;
(m) neither the Company nor any Subsidiary will repay, redeem, repurchase or make any offer (including any change of control offer provided in the Indentures) of repayment, redemption or repurchase of any Indenture Indebtedness, except as required by Section 6.3;
(n) neither the Company nor any Subsidiary will settle or enter into any settlement agreement with respect to alterations or amendments made with respect to non-officers and non-directors in any outstanding Litigation, except that, notwithstanding 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, providedforegoing, the Company may renegotiate settle or enter into any Channel Leases in settlement agreement with respect to any outstanding Litigation where the ordinary course amount of businesssuch settlement is less than $500,000; and
(o) neither the Company nor any Subsidiary will enter into or (x) commit or agree authorize an agreement with respect to take any of the actions described in this Section 5.1foregoing actions.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending From the Merger. ------------------------------------------
date hereof through the Closing Date, Seller shall (unless Seller receives Purchaser's written consent) (a) The Company covenants conduct its business relating to the Purchased Assets and agrees that between Assumed Liabilities in the date of this Agreement usual, regular and the Effective Time, unless Parent shall otherwise agree in writingordinary course consistent with past practice, (ib) the business of the Company use its best efforts to maintain and preserve intact its Subsidiaries relationships generally with its Bank Employees and Customers; provided, however, that any salary increases with respect to Bank Employees shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practiceSeller's past practices, (iic) take no action which would adversely affect the Company ability of any party hereto to obtain any Regulatory Approval or to perform its covenants and agreements under this Agreement, (d) perform its Subsidiaries shall use all commercially reasonable efforts material obligations, commitments, and contracts relating 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 operation of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply Branch except as modified 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 accordance with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date terms of this Agreement, (ye) exercise not modify or terminate any material contract obligations relating to the Business, except in accordance with their contractual terms and in accordance with customary and past practice, (f) operate the Business in material compliance with all current legal or statutory provisions, (g) not dispose of warrants and (z) conversion of Convertible Preferred Stock; (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; assets or (vi) take any action that would, or could reasonably be expected to, result in any liabilities of the conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 Branch except in the ordinary course of business consistent with past practice); , (ivh) 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 not materially alter any of its directors policies or officers; (vii) alter, amend or create any obligations practices between the date of this Agreement and the Closing Date with respect to compensationthe rates, severancefees, benefitscharges, change or level of control payments services available at or any other payments to employees, directors or affiliates Customers of the Company or its SubsidiariesBranch except for such alterations as may be instituted generally for similar branch offices of Seller and in accordance with ordinary course of business consistent with past practice, other than and (i) not make any capital expenditures in excess of $10,000 with respect to alterations the Branch without Purchaser's written consent, which will not be unreasonably withheld; provided, however that Seller shall be under no obligation to advertise or amendments made with respect to non-officers and non-directors promote new or substantially new customer services in the principal market area of, or for the benefit of, the Business; provided, further, that Seller shall pay interest on the Deposit Liabilities at rates which are determined in the ordinary course of business consistent with Seller's 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 5.1practices.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Bar Harbor Bankshares)
Conduct of the Business. Pending From and after the Merger. ------------------------------------------date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 9.1 and except (x) as may be agreed in writing by Purchaser (which consent shall not be unreasonably withheld or delayed), or (y) as may be expressly permitted pursuant to this Agreement, Company:
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only inshall, and the shall cause each Company and Subsidiary to, conduct its Subsidiaries shall not take any action except in, respective business in the ordinary course of business and in a manner consistent with prior practicepast practices;
(b) shall use commercially reasonable efforts, (ii) and shall cause each Company Subsidiary to use commercially reasonable efforts, to preserve intact its business organization and goodwill, keep available the services of its current officers and other key employees and preserve its relationships with those Persons having business dealings with Company and Company Subsidiaries;
(c) shall promptly notify Purchaser in writing of any material change in its Subsidiaries condition (financial or otherwise) or business or any termination, cancellation, repudiation or breach of any Company Material Contract (or communications indicating that the same are reasonably likely) or any litigation or governmental complaints, investigations or hearings (or communications indicating that the same are reasonably likely) or the breach of any representation or warranty contained herein;
(d) shall, and shall cause each Company Subsidiary to, 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 its insurance policies that are in effect as 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 significant business relations, and (iii) 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.
(b) The Company covenants and agrees that between the date of this Agreement Agreement;
(e) shall provide Purchaser with interim monthly financial statements and the Effective Timeany other management reports as and when they are available;
(f) except as set forth on Schedule 6.1, the Company shall not, nor and shall the Company not permit any of its Subsidiaries Company Subsidiary to, (i) authorize, 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) distribution with respect to the Convertible Preferred Stock and (z) with respect its outstanding shares of capital stock or other equity interests; provided, however, that, to the preferred extent permitted by the DGCL, Company may authorize, declare and pay dividends on or make any distribution to its outstanding shares of capital stock after giving effect to the exercise of Speedchoice of Detroitall Vested Options exercised pursuant to Section 3.5(a);
(g) shall not, Inc.; (ii) and shall not permit any Company Subsidiary to, split, combine or reclassify any of its capital stock or other equity interests or issue or authorize or propose the issuance of any other securities or other equity interests in respect of, in lieu of or in substitution for for, shares of its capital stock; stock or other equity interests;
(iiih) repurchase except as set forth on Schedule 6.1, shall not, and shall not permit any Company Subsidiary to, increase the compensation of any employee, enter into or amend any employment, severance or similar agreements or arrangements with any of their respective present or former directors or officers, or enter into, adopt or amend any other Company Employee Benefit Plan, except as required by law;
(i) shall not, and shall not permit any Company Subsidiary to, terminate any executive officer without cause or knowingly permit circumstances to exist that would give any executive officer a right to terminate employment, if the termination would entitle such executive officer to receive enhanced separation payments upon consummation of the Merger;
(j) shall not, and shall not permit any Company Subsidiary to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger) and shall not purchase the assets or equity or other securities of any business;
(k) shall not, and shall not permit any Company Subsidiary to, make or commit to make any capital expenditures in excess of $5,000.
(l) shall not, and shall not permit any Company Subsidiary to, propose or adopt any amendment to its Certificate of Incorporation or By-laws;
(m) except as set forth on Schedule 6.1, shall not, and shall not permit any Company Subsidiary to, issue or authorize the issuance of, or agree to issue or sell any shares of its capital stock of any class, or any other equity interests (in each case, whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except upon the exercise of Company Options;
(n) except as set forth on Schedule 6.1, shall not, and shall not permit any Company Subsidiary to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of any Company Subsidiary's capital stock or any other equity interests;
(o) except as set forth on Schedule 6.1, shall not, and shall not permit any Company Subsidiary to, purchase, 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, other equity interests 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.interests;
(cp) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries Company Subsidiary to, incur, assume any indebtedness or any other material liabilities;
(q) shall not, and shall not permit any Company Subsidiary to, (i) amend its certificate of incorporation (including make any certificate of designations attached thereto) loans, advances or bylaws capital contributions to, or investments in, any other equivalent organizational documents; Person, or (ii) incur pay, discharge or satisfy any indebtedness for borrowed money claims, liabilities or guaranty any such indebtedness of another personobligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) borrowings under existing lines of credit (discharges 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 satisfactions committed 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); ;
(ivr) merge shall not, and shall not permit any Company Subsidiary to, sell, lease, license, mortgage or consolidate with otherwise encumber or subject to any other entity Lien or otherwise dispose of any of its material properties or material assets;
(s) shall not, and shall not permit any Company Subsidiary to, enter into any agreement or arrangement that limits or otherwise restricts Company or any of its Subsidiaries, from engaging or competing in any transactionline of business in any geographic area;
(t) shall not, and shall not permit any Company Subsidiary to, settle or sell compromise any business claim, action or assets in a single transaction proceeding (including any claim, action or series of transactions in which the aggregate consideration is $100,000 proceeding relating to Taxes) involving money damages;
(u) shall not, and shall not permit any Company Subsidiary to, (A) make or greater; change any tax election or (B) change its fiscal year;
(v) change its accounting policies except as required by GAAP; a governmental authority, shall not change its methods of accounting (viincluding making any write-off or reduction in the carrying value of any assets);
(w) make shall not, and shall not permit any change in employment terms for any of its directors or officers; (vii) alterCompany Subsidiary to, terminate, amend or create otherwise modify in any obligations material respect any Company Material Contract;
(x) shall not grant credit to any client on terms materially more favorable than those which have been extended to such client in the past or materially change the terms of any credit heretofore extended;
(y) shall work in good faith with Purchaser to secure signed written contracts with respect to compensation, severance, benefits, change of control payments or any other payments all services to employees, directors or affiliates of the be performed by Company or its Company Subsidiaries; and
(z) shall not, 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 shall not permit any Company Subsidiary to, agree, in writing by Parent; (viii) make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreementsotherwise, 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 foregoing actions described or take any action which would (A) make any representation or warranty in this Section 5.1Article IV untrue or incorrect or (B) result in any of the conditions to the Merger set forth in Article VII not being satisfied.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Merger Agreement (Inforte Corp)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions, (w) as set forth in Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement and or the Effective Timeother Transaction Documents, unless Parent (y) as required by Applicable Law or (z) with Buyer’s written consent, Seller shall otherwise agree in writing, (i) conduct the Purchased Subsidiaries’ 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, in the ordinary course of business and in a manner consistent with prior practicepast practice in all material respects, and (ii) the Company and use its Subsidiaries shall use all commercially reasonable best efforts to (A) preserve intact the Purchased Subsidiaries’ business, operations, organization, goodwill and reputation, (B) maintain the good will of the Purchased Subsidiaries’ customers, suppliers, lenders and protect other Persons to whom the FCC Licenses and Channel LeasesPurchased Subsidiaries sells goods or provides services, to preserve substantially intact their business organizations, to (C) keep available the services of their current officers and key 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 significant business relationsBusiness, and (iiiD) maintain substantially the Company will comply same levels of coverage of insurance as provided on the date hereof. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions, (w) as set forth in all Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement, (y) as required by Applicable Law or (z) with Buyer’s written consent, Seller shall cause the Purchased Subsidiaries not to:
(a) amend in any material respects with all applicable Laws and regulations wherever its business is conductedrespect the articles of incorporation, including, without limitation, the timely filing of all reports, forms bylaws or other similar organizational documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.of any Purchased Subsidiary;
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Timeauthorize, the Company shall notissue, nor shall the Company permit any of its Subsidiaries to, (i) declare sell or pay any dividends on or make other distributions (whether in cash, stock or property) in respect otherwise dispose of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary equity securities of the Company to the Company Purchased Subsidiaries, or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock the equity securities of the Purchased Subsidiaries or issue or authorize or propose the issuance of any other securities in respect ofredeem, in lieu of or in substitution for shares of its capital stock; (iii) repurchase purchase, repurchase, retire or otherwise acquire any shares of its capital stock; (iv) issue, deliver or selloutstanding equity securities, or authorize or propose the issuancegrant any options, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stockwarrants, or rights with respect to any rightsequity securities in the Purchased Subsidiaries’ capital or bonds, warrants debentures, notes or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other corporate security other than with respect to transactions between the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.Purchased Subsidiaries;
(c) The Company covenants and agrees that between cease to operate the Purchased Subsidiaries’ properties (either permanently or temporarily other than scheduled shut downs for routine maintenance) or cease to carry on a material part of the Business as operated or carried on immediately before the date hereof;
(d) effect any dissolution, winding-up, liquidation or termination of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit Purchased Subsidiaries;
(e) acquire a material amount of assets from any of its Subsidiaries to, other Person except (i) amend its certificate of incorporation (including any certificate of designations attached thereto) pursuant to existing contracts or bylaws commitments or other equivalent organizational documents; (ii) 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 otherwise in the ordinary course of business consistent with past practice); ;
(ivf) merge acquire any material business or consolidate with Person, by merger, amalgamation or consolidation, purchase or sale of substantial assets or equity interests, or by any other entity manner;
(g) sell, lease, license or otherwise dispose of any material assets of the Purchased Subsidiaries except (i) pursuant to existing contracts or commitments, (ii) cash dividends or other cash distributions to Seller or its Affiliates or (iii) otherwise in the ordinary course of business consistent with past practice;
(h) transfer to any transactionperson any rights to the Registered Intellectual Property Rights or any other material Intellectual Property Rights owned by the Purchased Subsidiaries, except in connection with sales of the Purchased Subsidiaries’ products or services in the ordinary course of business;
(i) create or otherwise incur any Lien on the material assets of the Purchased Subsidiaries, other than Permitted Liens;
(j) incur any capital expenditures, except for (i) those contemplated by the capital expenditure budget attached as Section 5.05 of the Disclosure Schedule, and (ii) unbudgeted capital expenditures not to exceed $500,000 individually or $1,000,000 in the aggregate;
(k) issue, create, assume, guarantee or incur any additional indebtedness for borrowed money in an aggregate principal amount exceeding $500,000 individually or $1,000,000 in the aggregate (net of any amounts of indebtedness discharged during such period), other than (x) in the ordinary course of business, (y) that will be settled or repaid in full prior at or to Closing or (z) solely between or among Purchased Subsidiaries;
(l) enter into any arrangement pursuant to which any Purchased Subsidiary shall assume, guarantee or otherwise become liable with respect to the liabilities (other than indebtedness for borrowed money, which is the subject of Section 5.01(k)) of any Person (other than any Purchased Subsidiaries), other than (x) in the ordinary course of business or (y) that will be settled or repaid in full prior at or to Closing;
(m) other than in connection with actions permitted by Section 5.01(j), make any material loans, advances or capital contributions to, or sell investments in, any other Person, other than (i) in the ordinary course of business consistent with past practice, (ii) to any other Purchased Subsidiary or assets (iii) amounts that will be repaid in a single transaction full at or series prior to the Closing;
(n) waive or cancel any material claim, account receivable, trade account or right outside the ordinary course of transactions in which the aggregate consideration is $100,000 or greater; business;
(vo) change its accounting policies except as required by GAAP; Applicable Law, amend or modify in any material respect or terminate any Material Contract or Real Property Lease;
(vip) enter into any contract that would have been a Material Contract had it been entered into prior to the date hereof except, solely with respect to Material Contracts relating to the purchase of raw materials that have a term of less than one year, in the ordinary course of business consistent with past practice;
(q) settle or offer to settle, any material Action involving the Purchased Subsidiaries, except where the amount paid in settlement or compromise does not exceed (i) the amount of any reserves reflected on the Balance Sheet in respect of such Action or (ii) the aggregate coverage provided for under any insurance policy in respect of such Action, in either case, so long as such settlement does not impose any non-monetary terms and conditions on the Purchased Subsidiaries after the Closing;
(r) make any material change in employment terms any method of financial accounting, except for any such change required by reason of its directors a concurrent change in GAAP or officers; other Applicable Law;
(viis) alter, amend materially increase the compensation or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates benefits of the Company or its Subsidiaries, Business Employees 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 required by this Agreement Applicable Law or consented to the terms of any Benefit Plan or collective bargaining or other labor agreement;
(t) enter into, adopt, amend, or terminate any employment agreement, or terminate or hire any Key Employee, or other Business Employee above the grade of director or engage in writing by Parent; (viii) make any change a reduction in force with respect to the Company Benefit Plans; Business Employees;
(ixu) enter into into, adopt, amend or terminate any leasing Purchased Subsidiary Benefit Plan or licensing agreementsany Benefit Plan, take-or-pay arrangements except in each case as would not reasonably be expected to result in a liability that is material to the Purchased Subsidiaries taken as a whole;
(v) enter into, materially amend, or other affiliationsterminate any collective bargaining agreement, alignments collective labor agreement or similar agreements with respect to the FCC LicensesBusiness Employees; or
(w) agree or commit to do, providedwhether or not in writing, 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 foregoing. For the avoidance of doubt, nothing in this Section 5.1.
5.01 shall restrict Seller or any of its Subsidiaries, in any respect, from taking any action to (di) The Company Disclosure Letter sets forth cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the projected operating expenses cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account of any Purchased Subsidiary, (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital expenditures increases or decreases in connection therewith, (iv) in connection with any of the foregoing clauses (i), (ii) or (iii), cause any Purchased Subsidiary to incur indebtedness for Company borrowed money from another Purchased Subsidiary and its Subsidiaries on a consolidated basis from (v) otherwise comply with or give effect to the date provisions of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the ProjectionsAgreement.
Appears in 1 contract
Conduct of the Business. Pending Each of the Merger. ------------------------------------------Sellers and each of the Shareholders covenant and agree with the Buyer that from and after the date hereof until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Sellers shall, and the Shareholders shall cause the Sellers to:
(a) The Company covenants and agrees that between operate the date of this Agreement Business and the Effective TimeTransferred Assets only in the usual, unless Parent shall otherwise agree in writingregular and ordinary manner with a view to maintaining the goodwill that the Sellers now enjoy and, (i) to 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 extent consistent with prior practicesuch operation, (ii) the Company and its Subsidiaries shall will use all commercially reasonable efforts to maintain and protect preserve intact the FCC Licenses and Channel LeasesSeller's present business organization, to preserve substantially intact their business organizations, to keep available the services of their current officers and the Seller's employees and to preserve the current Sellers' relationships of the Company and with its Subsidiaries with customers, suppliers suppliers, jobbers, distributors and other persons Persons having business relations with which the Company or Seller;
(b) use all reasonable efforts to maintain the Transferred Assets in a state of repair, order and condition consistent with its Subsidiaries has significant business relationsusual past practice;
(c) maintain the Sellers' books of account and records relating to the Business in the usual, regular and ordinary manner, in accordance with the Sellers' usual accounting practices applied on a consistent basis;
(iiid) the Company will comply in all material respects with all applicable Laws statutes, laws, orders and regulations wherever its business is conductedapplicable to the Sellers and to the Business;
(e) not sell, includingassign, without limitationtransfer, lease or otherwise dispose of any of the timely filing Transferred Assets except for dispositions of Inventories for value in the usual and ordinary course of business;
(f) preserve and maintain all reportsrights that the Sellers now enjoy in and to the Proprietary Rights and not sell, forms assign, transfer, lease or otherwise dispose of any Proprietary Rights other documents with than to the FCC and with the SEC required Buyer pursuant to the Securities Act or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date terms of this Agreement;
(g) not mortgage, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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; pledge or (vi) take any action that would, or could reasonably be expected to, result otherwise create a security interest in any of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company Transferred Assets or permit there to be created or exist 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) 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 Liens thereon (other than loans Permitted Liens) that would not be released upon the transfer of the Transferred Assets to the Buyer pursuant to this Agreement;
(h) not enter into any contract, commitment, loan agreement, promissory note, letter of credit or advances less than $50,000 made other third party financing documentation or lease in relation to the Business or the Transferred Assets that is out of the ordinary course of business consistent business;
(i) not amend or modify any of the Entitlements;
(j) not consent to the termination of any of the Entitlements or waive any of the Seller's rights with past practice); respect thereto;
(ivk) merge not permit any insurance policy naming the Seller as a beneficiary or consolidate a loss payee relating to the Business or the Transferred Assets to be canceled or terminated or any of the coverage thereunder to lapse unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and effect;
(l) pay when due all accounts payable, all payments required by any of the Entitlements and all Taxes other entity than Taxes that are being contested in any transaction, or sell any business or assets good faith and for which adequate reserves against the Transferred Assets exist and which would not result in a single transaction Lien being imposed on any of the Transferred Assets; and
(m) promptly notify the Buyer in writing if any of the Sellers or series any of transactions in which the aggregate consideration is $100,000 or greater; (v) change its accounting policies except as required by GAAP; (vi) make Shareholders becomes aware of any change in employment terms for any of its directors that shall have occurred or officers; that shall have been threatened (vii) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors development that shall have occurred 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 that shall have been threatened involving a prospective change) in the ordinary course of business consistent with past practice Business or as expressly contemplated by this Agreement the Transferred Assets that would reasonably be expected to have a material or consented to in writing by Parent; (viii) make any change to adverse effect on the Company Benefit Plans; (ix) enter into any leasing Business or licensing agreements, take-or-pay arrangements the Transferred Assets whether or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases not occurring in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Weatherford International LTD)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the termination of this Agreement and the Effective TimeClosing Date, unless Parent shall otherwise agree in writing, except (i) the business as set forth on Schedule 5.01 of the Company Disclosure Schedules, (ii) if the Parent shall have consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed, provided Parent shall have discretion to consider the impact of any and all actions and the impact of such actions on the value of each of the Group Companies) or (iii) as otherwise contemplated or required by this Agreement (including, for the avoidance of doubt, the Pre-Closing Transactions and any actions deemed necessary in connection therewith), (1) the Company shall use its commercially reasonable efforts to conduct its business and the businesses of its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, 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 business operations and organization of the Company Group Companies and its Subsidiaries the goodwill of their suppliers, customers and others having business relationships with customersthem; provided, suppliers and other persons with which that, notwithstanding the foregoing or clause (2) of this Section 5.01, the Group Companies may use available cash to repay any indebtedness or to make one or more cash dividends from time to time on or prior to the Closing solely (A) to the extent necessary to pay tax distributions as contemplated by the Company LLC Agreement or its Subsidiaries has significant business relations, (B) to the extent that such cash dividend will not cause the Net Working Capital to be less than the Target Net Working Capital Amount and (iii2) 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.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor and shall the Company not permit any of its Subsidiaries to:
(a) except for issuances of replacement certificates for Units and except for issuance of new certificates for Units in connection with a transfer of Units by the holder thereof, (i) declare issue, sell or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of deliver any of its capital stockor any of its Subsidiaries’ equity securities or issue or sell any securities convertible into, except for dividends or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(xb) by a wholly owned Subsidiary effect any recapitalization, reclassification, equity split or like change in its capitalization;
(c) amend its Organizational Documents or any of the Company to the Company its Subsidiaries’ organizational documents;
(d) make any redemption or another wholly owned Subsidiary purchase of the Company, its or any of its Subsidiaries’ equity interests (y) other than with respect to the Convertible Preferred Stock and repurchase of Units or other equity interests from former employees of a Group Company pursuant to existing agreements);
(ze) with respect to the preferred stock of Speedchoice of Detroitsell, Inc.; (ii) split, combine assign or reclassify transfer any material portion of its capital stock or issue or authorize or propose the issuance of any other securities in respect oftangible assets, in lieu of or in substitution for shares of its capital stock; (iii) repurchase 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 except in the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or sell any business and except for sales of obsolete assets or assets with de minimis or no book value;
(f) sell, assign, transfer or exclusively license any material Intellectual Property, except in a single transaction the ordinary course of business;
(g) materially amend or series voluntarily terminate (excluding any automatic termination pursuant to the terms of) any Material Contract other than in the ordinary course of transactions in which the aggregate consideration is $100,000 or greater; business;
(v) change its accounting policies except as required by GAAP; (vih) make any change in employment terms for any of its directors or officers; (vii) altermaterial capital investment in, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any material loan to, any other payments to employeesPerson, 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 except in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement pursuant to any existing agreement or consented to in writing by Parent; budget;
(viiii) make any change material capital expenditures or commitments therefor, except (x) in the ordinary course of business and (y) for such capital expenditures or commitments therefor that are reflected in the Company’s current budget;
(j) make any material loan to, or enter into any other material transaction with, any of its managers, officers and employees outside the ordinary course of business except pursuant to any agreement set forth on the Company Disclosure Schedules;
(k) except in the ordinary course of business or as required under the terms of any Company Employee Benefit PlansPlan, in each case as in effect on the date hereof, (1) grant or announce any incentive awards or any increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers, managers, directors or other service providers; (ix2) materially increase the benefits under any Company Employee Benefit Plan; (3) enter into or amend any leasing employment, change in control, severance, retention or licensing agreementssimilar Contract with any officer, take-or-pay arrangements employee, consultant or other affiliations, alignments or agreements agent of any Group Company (other than offer letters providing for at-will employment without post-termination obligations with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases newly-hired employees who are hired in the ordinary course of business); or (4) terminate or materially amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof;
(l) commence or settle any material claim, action or proceeding;
(m) cancel any material third party indebtedness owed to any Group Company;
(n) grant any material discounts, credits or rebates to any customer or supplier of any Group Company other than in the ordinary course of business;
(o) except as required by GAAP, SAP or applicable Law, change any of the accounting principles or practices used by the Group Companies;
(p) make or change any material Tax election, change an annual accounting period, adopt or change any accounting method, file any material Tax Return in a manner inconsistent with past practice, file any amended Tax Return, fail to file any Income Tax Return or other material Tax Return when due (taking into account extensions if written notice thereof has been provided to Parent), fail to pay any material Tax when due, fail to accrue any material Tax in accordance with past custom, enter into any closing agreement, settle any material Tax claim or assessment relating to any of the Group Companies, surrender any right to claim a refund of material Taxes, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to any of the Group Companies, if such election, adoption, change, amendment, agreement, settlement, surrender, consent, filing, failure or other action would have the effect of materially increasing the Tax liability of any of the Group Companies after the Closing Date or could materially adversely affect Parent or its Affiliates (including the Group Companies);
(q) conduct its cash management customs and practices other than in the ordinary course of business in all material respects (including with respect to collection of accounts receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payable and accrued expenses, levels of capital expenditures and operation of cash management practices generally);
(r) institute or settle any Action for more than $1,000,000; or
(s) commit to do any of the foregoing. Nothing contained in this Agreement shall give the Parent or the Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing and (x) commit no action by any Group Company with respect to matters specifically addressed by any other provision of this Section 5.01 shall be deemed a breach of this Section 5.01 or agree any other provisions of this Agreement, unless such action would constitute a breach of one or more of such other provisions and (y) the Group Companies’ failure to take any of the actions described in action prohibited by this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on 5.01 shall not be a consolidated basis from the date breach of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses Section 5.01 or capital expenditures, in the aggregate, in excess any other provisions of those identified in the Projectionsthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Brown & Brown Inc)
Conduct of the Business. Pending During the Merger. ------------------------------------------
period from the Agreement Date and continuing until the earlier of: (a) The Company covenants and agrees that between the termination of this Agreement; (b) the date of this Agreement that Capricorn and its Affiliates have purchased the Effective Time, unless Parent shall otherwise agree SPR and PCR Business in writing, accordance with the Capricorn Repurchase Right (ias defined below); (c) the business date that the Deed of Share Charge (as defined below) is duly terminated; or (d) the date the amount of the Company Escrow Deposit (as defined in the Deed of Share Charge) reflects the Qualified Amount (as defined in the Deed of Share Charge), the Seller Parties shall and its Subsidiaries shall be conducted only incause the Seller Group to (except to the extent expressly contemplated by this Agreement, or as consented to in writing by Capricorn or Capricorn Sub in their reasonable discretion) to carry on such businesses in the usual, regular and ordinary course, consistent with past practice, in substantially the same manner as heretofore conducted, to pay debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other obligations when due, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner to use all reasonable efforts consistent with prior practice, (ii) the Company past practice and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, policies to preserve substantially intact their its present business organizationsorganization, to keep available the services of their current its present officers and key employees and to preserve the current its relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relationssuppliers, distributors, licensors, licensees, and (iii) others having business dealings with it, to the Company will comply end that its goodwill and ongoing Business shall be unimpaired. The Seller Parties shall and shall cause the Seller Group to promptly notify Capricorn and Capricorn Sub of any event or occurrence not in all material respects the ordinary course of its business, consistent with all applicable Laws past practice, and regulations wherever its business is conductedof any event which could have a Material Adverse Effect on any Seller Group Member or which could reasonably be expected to result in the representations and warranties of the Seller Parties not being true and correct as of the Closing. Without limiting the foregoing, including, without limitation, the timely filing of all reports, forms except as expressly contemplated by this Agreement or other documents with the FCC and with prior written consent of the SEC required pursuant Capricorn or Capricorn Sub (such consent not to be unreasonably withheld), no Seller Party shall do, cause or permit any of the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall notfollowing, nor shall the Company any Seller Party cause or permit any Seller Group Member to do cause or permit any of its Subsidiaries to, the following:
(ia) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect Issuance of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 or otherwise acquire any shares of its capital stock; (iv) issueSecurities. Issue, deliver or sell, sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or any securities convertible into any such shares of its capital stockinto, or any subscriptions, rights, warrants or options to acquire acquire, convertible loans, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.securities;
Appears in 1 contract
Samples: Business Acquisition Agreement
Conduct of the Business. Pending Notwithstanding anything contained in this Agreement to the Merger. ------------------------------------------
(a) The Company covenants contrary, Purchaser acknowledges and agrees that between neither of the date of this Agreement Companies nor the Seller is making any representations or warranties whatsoever, expressed or implied, beyond those expressly giving by the Companies and the Effective TimeSeller, unless Parent shall otherwise agree as the case may be, in writingArticle III, Article IV and VI, respectively (i) as modified by the Schedules hereto as supplemented or amended), and Purchaser acknowledges and agrees that, except for the representations or warranties contained therein, the assets and the business of the Company and its Subsidiaries Companies are being transferred on a “where is” and, as to condition, “as is” basis. Any claims Purchaser may have for breach of representations or warranties shall be conducted only inbased solely on the representations and warranties of the Companies and the Seller, set forth in Article III, Article IV or Article VI, respectively (as modified by the Schedules hereto as supplemented or amended). Purchaser further represents that none of the Companies, any Seller or any of their respective Affiliates, nor any other Person has made any representations and warranties, express or implied, as to the accuracy or completeness of any information regarding the Companies, the Seller, or the transactions contemplated by this Agreement not expressly set forth in 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) 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary none of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of DetroitSeller, Inc.; (ii) split, combine or reclassify any of its capital stock their respective Affiliates or issue or authorize or propose the issuance of any other securities in respect of, in lieu of Person will have or in substitution for shares of be subject to any liability to Purchaser or any other Person resulting from the distribution to Purchaser or its capital stock; (iii) repurchase representatives or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale Purchaser’s use of, any shares such information, including any confidential memoranda distributed on behalf of the Companies relating to the Companies or other publications or data room information provided to Purchaser or its representatives in connection with the sale of the Companies and the Transaction. Purchaser acknowledges that it has conducted to its satisfaction, its own independent investigation of the condition, operation and business of the Companies and, in making its determination to proceed with the Transaction, Purchaser has relied on the results 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 own independent investigation based upon the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as information supplied by Seller. As of the date hereof, Purchaser is not aware of this Agreementany facts, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully take any action events or circumstances that would make cause any of the Company's representations and or warranties of the Companies set forth in Article III not true and correct in all material respects; hereof to be untrue or (vi) take any action that would, or could reasonably be expected to, result incorrect in any of the conditions set forth in Article VI not being satisfiedrespect.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending From the Mergerdate hereof until the Closing Date, Seller shall conduct the Business in the ordinary course and shall preserve intact the Transferred Assets, and shall use its commercially appropriate efforts to preserve intact the Business’s goodwill with third parties. ------------------------------------------Without limiting the generality of the foregoing, from the date hereof until the Closing Date:
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, Seller will :
(i) maintain 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, Transferred Assets in the ordinary course of business in reasonably serviceable operating order and in a manner consistent with prior practicecondition, reasonable wear and tear, damage by fire and other casualty excepted;
(ii) the Company and use its Subsidiaries shall use all commercially reasonable best efforts to maintain and protect obtain, prior to the FCC Licenses and Channel LeasesClosing Date, to preserve substantially intact their business organizationsall Governmental Approvals, 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 significant business relations, and if any;
(iii) the Company will comply notify Buyer 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.
(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 writing if Seller becomes aware of any of its capital stockaction, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company event, condition or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sellcircumstance, or authorize group of actions, events, conditions or propose the issuancecircumstances, 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 wouldresults in, or could reasonably be expected toto result in, a Material Adverse Effect, such notification to be provided to Buyer promptly after becoming aware of the occurrence of any such action, event, condition or circumstances, or group thereof;
(iv) notify Buyer in writing of the commencement of any Proceeding by or against Seller relating to the Business or the Transferred Assets, or of becoming aware of any claim, action, suit, inquiry, proceeding, notice of violation, demand letter, subpoena, government audit or disallowance that could be expected to result in a Proceeding by or against Seller relating to the Business or the Transferred Assets, such notification to be provided to Buyer promptly after any such commencement or after Seller becomes aware thereof; and
(v) notify Buyer in writing of the occurrence of any breach by Seller of any of its representations or warranties made pursuant to Section 3, or any covenant or agreement contained in this Agreement, promptly after Seller becomes aware of any such breach.
(b) without Buyer’s prior consent, Seller will not and will not agree to:
(i) sell, assign, lease, license, transfer or otherwise dispose of, or mortgage, pledge or encumber (other than with Permitted Liens), any of the conditions set forth in Article VI not being satisfied.Transferred Assets; or
(cii) The Company covenants and agrees that between the date of this Agreement and the Effective Timewaive, the Company shall not, nor shall the Company permit cancel or take any other action materially impairing 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) 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) 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 rights relating 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 5.1Transferred Assets.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the termination of this Agreement and the Effective TimeClosing Date, unless Parent shall otherwise agree in writing, except (i) the business as set forth on Schedule 5.01 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 practiceDisclosure Schedules, (ii) the Company and its Subsidiaries if Parent 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 have consented in writing or its Subsidiaries has significant business relations, and (iii) 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.
(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 dividends (x) as otherwise contemplated by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y1) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall notconduct its business, nor and shall the Company permit any of cause its Subsidiaries toto conduct their business, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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); provided that the Company may use available cash to repay any Indebtedness on or prior to the Closing; (iv2) merge or consolidate the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to preserve intact their businesses, their assets and their relationships with any other entity customers, suppliers and others having business dealings with them in any transactionall material respects, or sell any business or assets in a single transaction or series and keep available the services of transactions in which their present officers and significant employees and (3) 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 Company shall not, and shall not permit any of its directors Subsidiaries to:
(a) except for issuances as may result from (i) the exercise of Options or officers; Warrants or the conversion of Preferred Stock, (viiii) alterreplacement certificates for shares of Company Stock and (iii) new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, amend issue, sell, grant or create deliver any obligations of its or any of its Subsidiaries' equity securities or issue, sell or grant any securities convertible into, or options or rights with respect to, or warrants to compensationpurchase or rights to subscribe for, severance, benefits, change any of control payments its or any other payments to employees, directors or affiliates of its Subsidiaries' equity securities;
(b) except for the cancellation of the Company Options and Warrants in accordance with this Agreement or pursuant to the terms of the Contract governing the Option or Warrant (which Contract is set forth on Schedule 3.04(b)), redeem, repurchase or otherwise acquire, any equity securities of the Company;
(c) effect any recapitalization, reclassification, equity split, combination or like change in its capitalization;
(d) amend its Organizational Documents or any of the Company's Subsidiaries' organizational documents;
(e) redeem, purchase or issue any of its or any of its Subsidiaries, ' equity interests (other than with respect to alterations the repurchase of Company Stock (including any Options) from former employees of a Group Company pursuant to existing agreements disclosed to Parent and scheduled pursuant to Article III or amendments made the existing requirements of any Company Employee Benefit Plan);
(f) sell, assign or transfer any portion of its tangible assets, except in the ordinary course of business consistent with past practice or except for sales of obsolete assets or assets with de minimis value;
(i) permit the lapse, abandonment, disclaimer, cancellation, forfeiture, failure to maintain, loss of rights, dedication to the public, assignment or sale, in whole or in part, of any Owned Intellectual Property used in the business of the Company or any of its Subsidiaries; (ii) grant any non-compete, covenant not to xxx, or other material restriction on or modification of the current or contemplated operation or scope of its business, or other rights to any Owned Intellectual Property, except with respect to incidental use rights in Owned Intellectual Property related to products sold to customers of the Company or any of its Subsidiaries, or otherwise granted by the Company in the ordinary course of business consistent with past practice; (iii) transfer its ownership rights in any Owned Intellectual Property jointly developed, created or invented with any third party, or Owned Intellectual Property developed, created or invented by any third party on behalf of Company or any of its Subsidiaries; or (iv) disclose any confidential information or Trade Secret to any Person (other than employees and consultants of the Company or any of its Subsidiaries having a need to know that are subject to a confidentiality or non-disclosure covenant protecting against further disclosure thereof), except under non-disclosure obligations or agreements;
(i) enter into (including extensions, other than automatic renewals, at the end of a term), transfer, terminate, amend or modify any Material Contract or (ii) waive any material rights, or discharge any other party of any material obligation, under any Material Contract; provided that Parent shall not unreasonably withhold, condition or delay its consent to an action described in this Section 5.01(h)(ii);
(i) make any capital investment in, or any loan to, any other Person;
(j) make any capital expenditures or commitments therefor, except for such capital expenditures or commitments as referenced in any Material Contract;
(k) enter into any agreement with any of its managers, officers and nonemployees outside the ordinary course of business except pursuant to the existing terms of any agreement set forth on the Disclosure Schedules;
(l) except as required under the terms of any Company Employee Benefit Plan as in effect on the date hereof, (i) grant or announce any incentive awards or any increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers, directors or other service providers; (ii) increase or decrease the benefits under any Company Employee Benefit Plan or pay to any individual any amounts under any Company Employee Benefit Plan not otherwise due; (iii) grant any right to receive any change in control, severance, retention or similar compensation to any officer, employee, consultant or other agent of any Group Company; (iv) terminate or amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof (other than offer letters providing for at-directors will employment without post-termination obligations with newly-hired employees with a base salary lower than One Hundred Forty Thousand Dollars ($140,000) who are hired in the ordinary course of business consistent with past practice or as expressly contemplated required by this Agreement or consented to in writing by Parentapplicable Law); (viii) make any change to the Company Benefit Plans; (ixv) enter into any leasing collective bargaining agreement; (vi) hire or licensing agreementsterminate any employee with a base salary in excess of One Hundred Forty Thousand Dollars ($140,000); (vii) accelerate the payment timing of any benefits under any Company Employee Benefit Plan; or (viii) provide any funding for any rabbi trust or similar arrangement, take-or-pay arrangements or take any other affiliations, alignments action to fund or agreements with respect to secure the FCC Licenses, provided, the Company may renegotiate payment of any Channel Leases compensation or benefit;
(m) settle or compromise any Action;
(n) incur any Indebtedness except for immaterial Indebtedness incurred in the ordinary course of business; , issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person;
(xo) commit create or agree incur any Lien on any Asset, other than Permitted Liens;
(p) make any loan, advance or capital contribution to take or investment in any Person;
(q) acquire any real property or any direct interest in any real property;
(r) merge or consolidate with any other Person or effect any business combination, recapitalization or similar transaction (other than the Merger);
(s) make any change to its financial accounting methods, policies or practices or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(t) make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any "closing agreement" within the meaning of Section 7121 of the actions described in this Section 5.1.Code (or any similar provision of state, local or non-U.S. Law), apply for or request any Tax ruling, or surrender any right to claim a material Tax refund;
(du) The Company Disclosure Letter sets forth fail to pay or satisfy any material account payable or other liability incurred in the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from ordinary course of business consistent with past practice (including in each case, the date timing of this Agreement through December 31any such payments), 1999 as agreed to other than any such liability that is being contested by the Company or its Subsidiaries in good faith;
(v) forgive, cancel or compromise any debt or claim, or waive, release or assign any right or claim of value, other than in the ordinary course of business consistent with past practice;
(w) make any payments, other than pursuant to Contracts in effect as of the date hereof and Parent (in accordance with the "Projections"). The Company agrees terms thereof or new Contracts approved by Parent, or grant discounts to customers or suppliers, except for one-time customer satisfaction credits or discounts granted in the ordinary course of business consistent with past practice that it shall are not incur material operating expenses material, individually or capital expenditures, in the aggregate, in excess of those identified to the Company and its Subsidiaries;
(x) make any changes in the Projectionsmanagement of working capital or materially modify practices with respect to the purchase of inventory, collection of receivables and payment of accounts payable, including the writing and mailing of checks or initiation of wire transfers;
(y) adopt or enter into a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); or
(z) authorize any of, or agree or commit to do any of the foregoing actions. No exception set forth in Section 5.01 that permits any action or omission to take an action that would otherwise be prohibited under any clause of Section 5.01 shall be deemed to eliminate the need to obtain consent under any other clause of Section 5.01 that is applicable to such action or omission to take an action. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company's or any of its Subsidiaries' operations prior to the Closing to the extent in violation of applicable Law.
Appears in 1 contract
Conduct of the Business. Pending During the Mergerperiod from the date hereof to the Closing, except as otherwise expressly provided in this Agreement, the Seller Entities shall operate the Business only in the ordinary course of business . ------------------------------------------
(a) The Company covenants Seller Entities shall use their respective reasonable best efforts to preserve intact the present organization of the Business, keep available the services of the present officers and agrees that between employees of the Business and preserve relationships with customers, suppliers, licensors, licensees, contractors, distributors and others having business dealings with the Business. Without limiting the generality of the foregoing, from the date of this Agreement and to the Effective TimeClosing, the Seller Entities shall not, without the prior written consent of Parent, to the extent related to the Business:
(a) sell, lease, encumber, transfer or dispose of any assets or rights or acquire any assets or rights which would be included in the Assets, unless Parent shall otherwise agree in writingthe ordinary course of business, or pursuant to the capital expenditure plan described in Section 4.1(a) of the Disclosure Schedule, or except for the acquisition from Metrovision of North America, Inc. of the 40% minority interest in York Hannover Partnership, a Wisconsin general partnership;
(b) engage in any sales of a product (i) with payment terms longer than terms customarily offered by each of the Seller Entities for such product, (ii) at a greater discount from listed prices than customarily offered for such product, other than pursuant to a promotion of a nature previously used in the normal course of business of each of the Company and its Subsidiaries shall be conducted only inSeller Entities for such product, and (iii) at a price which does not give effect to any previously announced general increase in the Company and its Subsidiaries shall list price for such product, (iv) with shipment terms more favorable to the customer than shipment terms customarily offered by each of the Seller Entities for such product, (v) in a quantity greater than the reasonable retail or wholesale (as the case may be) resale requirement of the particular customer or (vi) in conjunction with other benefits to the customer not take any action except in, 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.customer;
(c) 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 collect any of its Subsidiaries to, (i) amend its certificate of incorporation (including accounts receivables or fail to pay any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personaccounts payable, other than in the ordinary course of business ;
(Ad) borrowings under existing lines enter into any material commitment or transaction unless in the ordinary course of credit business ;
(e) permit any Asset to suffer any Lien thereupon, other than Permitted Liens;
(f) change (or under permit to be changed) 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 accounting (other than loans with respect to inventory accounting as described in Section 2.18) or advances less than Tax procedure or practice or its financial structure or make (or permit to be made) any Tax election or settle or compromise any liability for Taxes;
(g) enter into, adopt, amend or terminate any employee benefit plan, increase in any manner the compensation or benefits of any officer or employee or pay any benefit not required by any existing employee benefit plan, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing, except to the extent bound by applicable law and except for normal merit and seniority raises and discretionary bonuses in the aggregate not to exceed $50,000 made 10,000 to any individual, granted in the ordinary course of business consistent with past practice); practices;
(ivh) merge enter into or consolidate offer to enter into any employment or consulting agreement 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 person outside the ordinary course of business consistent with past practice or as expressly contemplated business, unless terminable at will by this Agreement or consented to in writing by Parent; the employing Seller Entity;
(viiii) make any change to capital expenditures outside the Company Benefit Plans; ordinary course of business, except for those included in the capital expenditure plan described in Section 4.1(a) of the Disclosure Schedule;
(ixj) enter into into, amend or terminate any leasing or licensing agreementsmaterial contract, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases except in the ordinary course of business;
(k) enter into any transaction or any contract with any affiliate, other than transactions on arm's-length terms in the ordinary course; or
(l) authorize, or (x) commit or agree to take take, any of the actions described in this Section 5.1foregoing actions.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Extendicare Health Services Inc)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company Shareholder covenants and agrees with the Buyer that between from and after the date of this Agreement until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Shareholder shall, and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business cause each of the Company Companies to:
(a) operate the Companies only in the usual, regular and its Subsidiaries shall be conducted only inordinary manner with a view to maintaining the goodwill that the Companies now enjoy and, and to the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner extent consistent with prior practicesuch operation, (ii) the Company and its Subsidiaries shall will use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact their present 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 their relationship with their customers, suppliers suppliers, jobbers, distributors and other persons Persons having business relations with which the Company or its Subsidiaries has significant business relations, and (iii) 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.them;
(b) The Company covenants use all reasonable efforts to maintain the assets 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 dividends (x) by a wholly owned Subsidiary properties of the Company to the Company or another wholly owned Subsidiary Companies in a state of the Companyrepair, (y) order and condition consistent with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.their usual practice;
(c) The Company covenants maintain the books of account and agrees that between records relating to the date Companies in the usual, regular and ordinary manner, in accordance with the usual accounting practices of this Agreement the Companies applied on a consistent basis and not increase the Effective Timecarrying value of any assets or properties above their historical costs;
(d) comply in all Material respects with all statutes, laws, orders and regulations applicable to the Company shall notCompanies and to the conduct of the Companies;
(e) not sell, nor shall the Company permit assign, transfer, lease or otherwise dispose of any assets or properties of any of its Subsidiaries tothe Companies except for dispositions of the inventories of the Companies for value in the usual and ordinary course of business;
(f) not move any of the Assets to a new geographic location other than in the usual and ordinary course of business;
(g) preserve and maintain all rights that the Companies now enjoy in and to the Intellectual Property and not sell, assign, transfer, lease or otherwise dispose of any Intellectual Property;
(h) not mortgage, pledge or otherwise create a security interest or permit there to be created or exist any Liens on the assets or properties of any of the Companies other than the Permitted Liens;
(i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) not incur any indebtedness obligation for borrowed money or guaranty any such purchase money indebtedness of another personwhether or not evidenced by a note, other than (A) borrowings under existing lines of credit (bond, debenture or under any refinancing of such existing lines) or (B) indebtedness owing tosimilar instrument, 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) 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; ;
(j) not enter into any contract, commitment or (x) commit or agree lease in relation to take any of the actions described in this Section 5.1.Companies that is out of the ordinary course of the Companies or that is with an Affiliate of any of the Companies or that would be binding on the Buyer;
(dk) The Company not amend or modify any of the contracts or agreements disclosed in Section 2.6 of the Disclosure Letter sets forth Schedule;
(l) not consent to the projected operating expenses termination of any of the contracts and capital expenditures for Company agreements disclosed in Section 2.6 of the Disclosure Schedule or waive any of the rights of any of the Companies with respect thereto;
(m) not permit any insurance policy naming the Shareholder or any of the Companies as a beneficiary or a loss payee relating to any of the Companies to be cancelled or terminated or any of the coverage thereunder to lapse unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and its Subsidiaries on a consolidated basis from effect and, further, not settle or permit any of the date of this Agreement through December 31, 1999 as agreed Companies to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, settle any claim under any such insurance policy in the aggregate, an amount in excess of those identified $50,000;
(n) pay all accounts payable in a manner consistent with past practice, all payments required by any of the contracts and agreements set forth in Section 2.6 of the Disclosure Schedule, and all Taxes other than Taxes that are being contested in good faith and for which adequate reserves exist in the ProjectionsFinancial Statements and that would not result in a Lien being imposed on any assets or properties of any of the Companies;
(o) not make any Tax elections that would affect any of the Companies or change any method of accounting or application of any principles under GAAP;
(p) not change the terms of employment of any officer or senior employee or increase the compensation or rate of compensation or commissions or bonuses payable by any of the Companies to any of its employees that is not consistent with past practice;
(q) not declare or pay any dividend on or make any other distribution in respect of any of the shares in the capital of any of the Companies or purchase, redeem or otherwise acquire any of such shares;
(r) not authorize or issue, sell, pledge, dispose of or encumber any shares in the share capital of any of the Companies, including the Shares;
(s) not grant any stock options or rights to acquire shares in the capital of the Companies including the Shares;
(t) not amend or otherwise modify the organizational documents or Bylaws of any of the Companies;
(u) not amend any Company Benefit Plan except as required by law or this Agreement; and
(v) promptly notify the Buyer in writing if the Shareholder becomes aware of any change that shall have occurred or that shall have been threatened (or any development that shall have occurred or that shall have been threatened involving a prospective change) in any of the Companies that would reasonably be expected to have a Material Adverse Effect on any of the Companies whether or not occurring in the ordinary course of business.
Appears in 1 contract
Samples: Share Purchase Agreement (Allis Chalmers Energy Inc.)
Conduct of the Business. Pending From the Merger. ------------------------------------------Signing Date until the Closing, or the earlier termination of this Agreement, without the prior written consent of OpCo Buyer (which consent shall not be unreasonably withheld), Sellers shall, with respect to the ownership of the Assets and the operation of the Hospital and the Practices, use commercially reasonable efforts to, in each case except as would not have a material adverse effect (other than as noted below):
(a) The Company covenants and agrees that between without regard to material adverse effect, carry on Sellers’ ownership of the date of this Agreement Assets and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business operation of the Company and its Subsidiaries shall be conducted only inHospital, the Practices and the Company graduate medical education residency 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 fellowship programs in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement or consented to of hospital operations;
(b) maintain in writing by Parent; (viii) make any change to effect the Company Benefit Plans; (ix) enter into any leasing or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements insurance and equipment replacement coverage with respect to the FCC LicensesAssets;
(c) maintain the Assets in materially the same condition as at present, 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.wear and tear excepted;
(d) The Company Disclosure Letter sets forth perform its obligations under all Assumed Contracts and Assumed Leases;
(e) following entry of the projected operating expenses Sale Order, permit and capital expenditures for Company allow reasonable access by OpCo Buyer and its Subsidiaries on representatives (which shall include the right to send written materials, all of which shall be subject to Sellers’ reasonable approval prior to delivery) to make offers of post- Closing employment to any of Sellers’ personnel (including access by OpCo Buyer and its representatives for the purpose of conducting open enrollment sessions for OpCo Buyer’s employee benefit plans and programs) and to establish relationships with physicians, medical staff and others having business relations with Sellers;
(f) with respect to material deficiencies, if any, cited by any governmental authority or accreditation body in the most recent surveys conducted by each, cure or develop and timely implement a consolidated basis from plan of correction that is acceptable to such governmental authority or such accreditation body;
(g) timely file or cause to be filed all material reports, notices and tax returns required to be filed and pay all required taxes as they come due to the date of this Agreement through December 31, 1999 as agreed to extent that nonpayment would result in a lien that would not be divested by the Company Sale Order;
(h) comply in all material respects with all Legal Requirements (including environmental laws) applicable to the conduct and Parent operation of the Hospital and Practices; and
(i) without regard to material adverse effect, maintain all material approvals, Permits and environmental Permits relating to the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expendituresHospital and the Practices, in and the aggregate, in excess of those identified in the ProjectionsAssets.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company Seller covenants and agrees that between to Buyer that, from the date of this Agreement hereof to the Closing, Seller will conduct and use the Effective TimeBusiness, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only inPurchased Assets, and the Company and its Subsidiaries shall not take any action except in, Assumed Liabilities only in the ordinary course of business and in a manner consistent with prior past practice. Without limiting the generality of the foregoing, Seller hereby covenants to Buyer that, solely insofar as the Business, the Assumed Liabilities, and the Purchased Assets are concerned, Seller will:
(iia) the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain preserve the business and protect the FCC Licenses and Channel Leasessales organization of Seller intact, to preserve substantially intact their business organizations, to keep available the services of their current the present officers and employees directors of Seller and preserve intact their relationship and goodwill with respective suppliers, customers, employees, creditors and others having business or other dealings with the Business, consistent with past practices;
(b) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice;
(c) maintain all Business Intellectual Property in the same standing as exists on the date hereof and continue the prosecution of all applications therefor;
(d) timely perform and comply with, in all material respects, the provisions of all contracts, commitments or other obligations relating to preserve or affecting the current relationships Purchased Assets or the Business;
(e) maintain and keep the Purchased Assets in at least as good condition and repair, ordinary wear and tear excepted, as the condition and repair of the Company and its Subsidiaries with customers, suppliers and other persons with which Purchased Assets as of the Company date hereof;
(f) pay when due (including any lawful extensions) all Taxes imposed on it or its Subsidiaries has significant business relationsincome, profit or assets or otherwise required to be paid by it, and pay when due any liability or charge which, if unpaid, might become a lien or charge upon any of the Purchased Assets, except to the extent any such Tax, liability or charge is being contested in good faith through appropriate proceedings;
(iiig) maintain in full force and effect and comply with, in all material respects, all Governmental Permits, certificates, licenses, approvals and authorizations required under all laws in connection with the Company will Business, and comply in all material respects with all laws, rules and regulations applicable to the Business;
(h) confer on a regular and frequent basis with one or more representatives of Buyer to report operational matters of materiality and the general status of ongoing operations;
(i) duly comply in all material respects with all applicable Laws laws, regulations and regulations wherever orders and shall not take or omit to take any action that would cause a default under or material breach of any Contract, commitment or obligation of Seller;
(j) maintain with adequately capitalized insurance companies insurance coverage for its business is conductedassets and its businesses in such amounts and against such risks and losses as are consistent with past practice;
(k) not enter into or amend any employment (excluding any changes to salaries of less than five percent (5%) per employee and one percent (1%) in the aggregate) severance, including, without limitation, the timely filing special pay arrangement with respect to termination of all reports, forms employment or other documents similar arrangements or agreements with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.any Business Employees;
(bl) The Company covenants not increase or decrease the aggregate number of the Business Employees by more than five percent (5%) without the prior written permission of Buyer;
(m) not enter into any agreement with a supplier providing for delivery to Seller of materials in amounts in excess of those which Seller, using sound business judgment, reasonably project to be used during the next calendar quarter;
(n) not incur or agree to incur any Indebtedness;
(o) not incur or agree to incur any liability or obligation or enter into any agreement or transaction, except renewals or replacements of existing Contracts in the ordinary course of business on substantially the same or more favorable terms;
(p) not mortgage, pledge, sell, lease, distribute, dispose of or otherwise encumber or convey any interest in any asset or property of Seller other than in the ordinary course of Business;
(q) not adopt or modify or pay any bonus, pension, profit sharing or other compensation plan, other than budgeted increases for Business Employees or enter into or modify any contract or terms and agrees that between the date conditions of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, employment;
(ir) not declare or pay any dividends on or distribute cash or securities to its stockholders, make any direct or indirect redemption, purchase or other distributions (whether in cash, stock or property) in respect acquisition of any of its capital stockstructure, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 additional shares of its capital stock, including, any change in authorized, issued or outstanding capital stock or any rightsissuance, warrants subdivision or options to acquire reclassification of any such shares of capital stock or convertible securities issue any options, warrants, rights or any stock appreciation rights, phantom stock plans or other capital stock equivalents;
(s) not amend its certificate or articles of incorporation or bylaws;
(t) not make any capital expenditures in excess of $10,000;
(u) not waive, other release or transfer any right greater than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; $10,000 in aggregate value;
(v) willfully not pay, compromise or settle any claim, action, suit or proceeding; and
(w) not take any other action that would make the Company's representations and warranties set forth which could (i) result in Article III not true and correct in all material respectsa Material Adverse Effect; or (viii) take a breach of any action that would, representation or could reasonably be expected to, result warranty contained in any of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between this Agreement if taken prior to 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) 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) 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 5.1hereof.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Acquisition Agreement (C-Cor Inc)
Conduct of the Business. Pending From the Merger. ------------------------------------------date hereof until the Closing or, if earlier, the termination of this Agreement, taking into account that the Debtors are debtors-in-possession and subject to orders of the Bankruptcy Court, except (I) as otherwise required or permitted by this Agreement or any other Transaction Documents, (II) as required by any Contract existing as of the date hereof to which a Debtor or Hospital LP is a party and which has been made available to Buyer and which has not been rejected prior to Closing, (III) as required by any Applicable Law or any Governmental Authority or any requirements or limitations resulting from the Bankruptcy Cases or orders from the Bankruptcy Court, or (IV) as otherwise consented to in writing by Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Debtors agree that they shall:
(a) The Company covenants use commercially reasonable efforts to conduct the Business in the Ordinary Course of Business;
(b) use commercially reasonable efforts to carry on the Business and agrees that between their relationships with customers, suppliers, employees and others with whom the Debtors have business relations in substantially the same manner as they have in the 90-day period prior to the date of this Agreement and Agreement;
(c) confer with the Effective Time, unless Parent shall otherwise agree in writing, Buyer concerning material business or operational matters relating to the Business;
(id) 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 all of the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of tangible Transferred Assets in their current officers condition, reasonable wear and employees tear excepted;
(e) comply with Applicable Laws, except for matters of non-compliance as would not reasonably be expected to have a Debtors Material Adverse Effect;
(f) maintain its books and records in the usual, regular and ordinary manner;
(g) respond to preserve the current relationships reasonable queries of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company Buyer or its Subsidiaries has significant Representatives concerning the status and operations of the Business in connection with Buyer’s continued due diligence investigation;
(h) not grant any increase in salary, bonus or hourly rate or make any advance (excluding advances for ordinary and necessary business relationsexpenses) or loan to, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedany of employee, includingor hire any new employee, without limitation, the timely filing of all reports, forms or other documents except with the FCC consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however that the compensation of employees receiving an annual compensation of less than $50,000 may be changed in the Ordinary Course of Business and with that Debtors may hire new employees who will receive an annual compensation of less than $50,000 in the SEC required Ordinary Course of Business;
(i) not, except pursuant to the Securities Act terms of any existing benefit plan of the Debtors or pursuant to the Exchange Act.terms of any Contract, grant any severance or termination pay to any officer, or employee thereof of the Debtors, either individually or as part of a class of similarly situated Persons;
(bj) The Company covenants and agrees not adopt or enter into any new ERISA Plan in regard to employees of the Business or materially increase the benefits available under any ERISA Plan of the Debtors;
(k) not make any material amendment to, terminate or fail to use commercially reasonable efforts to renew any Contract that between the date is a Desired 365 Contract;
(l) not merge or consolidate with or into any legal entity, dissolve, liquidate, or otherwise terminate its existence;
(m) not sell, lease, assign, transfer or otherwise dispose of this Agreement and any material assets or properties that would be Transferred Assets if retained by Debtors at the Effective Time, other than Inventory and materials sold, consumed or otherwise disposed of in the Company shall notOrdinary Course of Business;
(n) not assume, nor shall the Company permit assign, reject, terminate or modify any of its Subsidiaries to, executory contract or unexpired lease (i) declare that is a Desired 365 Contract 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (yii) with respect to a contract or lease not designated as Desired 365 Contract, unless consented to by Buyer (such consent not to be unreasonably withheld, conditioned or delayed);
(o) not extend credit in the Convertible Preferred Stock performance of services or sale of inventory, other than in the Ordinary Course of Business;
(p) not change in any material respect existing practices and (z) procedures with respect to billing or the preferred stock collection of Speedchoice Accounts Receivable, offer to discount, or discount the amount of Detroit, Inc.; any outstanding receivable or extend any other incentive (iiwhether to the account debtor or any employee or third party responsible for the collection of receivables) split, combine or reclassify to accelerate the collection thereof except in the Ordinary Course of Business;
(q) not relocate any of its capital stock the Transferred Assets, except for distribution and sale of Inventory and transfers of equipment and supplies between or issue or authorize or propose among the issuance of any other securities in respect oflocations from which the Debtors operate the Business, in lieu each case in the Ordinary Course of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sellBusiness, or authorize as would not materially and adversely affect the Business or propose the issuanceTransferred Assets;
(r) not fail to keep in full force and effect present insurance policies, delivery binders, contracts, instruments 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 comparable insurance benefiting the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as assets of the date Debtors and the conduct of this Agreementthe Business; and
(s) not commit or agree, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully whether in writing or otherwise, to 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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 prohibited 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 5.15.01.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Foundation Healthcare, Inc.)
Conduct of the Business. Pending During the Merger. ------------------------------------------
period from the Agreement Date and continuing until the earlier of: (a) The Company covenants and agrees that between the termination of this Agreement; (b) the date of this Agreement that Capricorn and its Affiliates have purchased the Effective Time, unless Parent shall otherwise agree SPR and PCR Business in writing, accordance with the Capricorn Repurchase Right (ias defined below); (c) the business date that the Deed of Share Charge (as defined below) is duly terminated; or (d) the date the amount of the Company Escrow Deposit (as defined in the Deed of Share Charge) reflects the Qualified Amount (as defined in the Deed of Share Charge), the Seller Parties shall and its Subsidiaries shall be conducted only incause the Seller Group to (except to the extent expressly contemplated by this Agreement, or as consented to in writing by Capricorn or Capricorn Sub in their reasonable discretion) to carry on such businesses in the usual, regular and ordinary course, consistent with past practice, in substantially the same manner as heretofore conducted, to pay debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other obligations when due, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner to use all reasonable efforts consistent with prior practice, (ii) the Company past practice and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, policies to preserve substantially intact their its present business organizationsorganization, to keep available the services of their current its present officers and key employees and to preserve the current its relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relationssuppliers, distributors, licensors, licensees, and (iii) the Company will comply in all material respects others having business dealings with all applicable Laws and regulations wherever its business is conductedit, 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 end that its goodwill and ongoing Business shall be unimpaired. The Seller Parties shall and shall cause the Exchange Act.
(b) The Company covenants Seller Group to promptly notify Capricorn 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 Capricorn Sub of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company event or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully take any action that would make the Company's representations and warranties set forth in Article III occurrence 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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 its business, consistent with past practice); (iv) merge , and of any event which could have a Material Adverse Effect on any Seller Group Member or consolidate with any other entity which could reasonably be expected to result 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 representations and warranties of the Company or its SubsidiariesSeller Parties not being true and correct as of the Closing. Without limiting the foregoing, 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 except as expressly contemplated by this Agreement or consented with the prior written consent of the Capricorn or Capricorn Sub (such consent not to in writing by Parent; (viii) make any change to the Company Benefit Plans; (ix) enter into any leasing be unreasonably withheld), no Seller Party shall do, cause 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 permit any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth following, nor shall any Seller Party cause or permit any Seller Group Member to do cause or permit any of the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.following:
Appears in 1 contract
Samples: Business Acquisition Agreement (China Medical Technologies, Inc.)
Conduct of the Business. Pending To and including the Merger. ------------------------------------------
(a) The Company covenants and agrees that between the date of this Agreement and the Effective TimeClosing Date, unless Parent shall otherwise agree 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 significant business relations, and (iii) 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 consent of Buyer (which consent will not be unreasonably withheld), as contemplated pursuant to the Securities Act or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 Restructuring Plan or as expressly contemplated by this Agreement or consented Agreement:
(a) the Selling Companies will conduct the Business in the Ordinary Course of Business and in accordance with applicable Law;
(b) each Selling Company will (i) use commercially reasonable efforts to in writing by Parent; preserve its respective business organization and goodwill, keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (viiiii) make any change subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations relating to the Company Benefit Plans; Business as requested by Buyer and (ixiii) enter into except as required by applicable Laws or contract, not take any leasing action that would render, or licensing agreementsthat reasonably may be expected to render, take-or-pay arrangements any representation or other affiliationswarranty made by the Selling Companies in this Agreement untrue;
(c) except with the consent of Buyer or in the Ordinary Course of Business, alignments or agreements with respect the Selling Companies will not use extraordinary selling efforts that would have the effect of Table of Contents accelerating sales in the Business prior to the FCC Licensestime reasonably expected, providedthrough offering of discounts, the Company may renegotiate any Channel Leases in the ordinary course shipment of business; goods prior to anticipated shipping dates or (x) commit or agree to take any of the actions described in this Section 5.1.otherwise;
(d) The Company Disclosure Letter sets forth the projected operating expenses Selling Companies will not permit any accounts payable related to the Business owed to trade creditors to remain outstanding more than 60 days;
(e) the Selling Companies will not enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary or benefits increases, severance or termination pay to, any officers, directors, managers, employees or consultants employed by the Business, except in the Ordinary Course of Business;
(f) and capital expenditures for Company and its Subsidiaries the Selling Companies will not, except in the Ordinary Course of Business, (whether directly or indirectly) sell, transfer, license, abandon, let lapse, disclose, misuse, misappropriate, diminish, destroy, encumber, or otherwise dispose of or encumber any Acquired Intellectual Property that is necessary to carry on a consolidated basis from the date of this Agreement through December 31, 1999 Business as agreed to currently conducted by the Company or assert or threaten to assert any rights in Acquired Intellectual Property against any third party.
(g) the Company will not cancel or terminate its current insurance policies insuring any of the Acquired Assets or allow any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projectionseffect.
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Franklin Covey Co)
Conduct of the Business. Pending Except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Merger. ------------------------------------------
Disclosure Schedule or in any other Section of the Disclosure Schedule, during the period from the date hereof to the Closing, Sellers shall, and shall cause the PEPL Companies to, taking into account any matters that may arise that are attributable to the pendency of the transactions contemplated by this Agreement, (a) The Company covenants conduct the Business only in the ordinary course, consistent with past practice and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (ib) use their respective reasonable best efforts to preserve the business organization of the Company and its Subsidiaries shall be conducted only inPEPL Companies intact, 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 the current officers and employees and to preserve the current relationships of the Company PEPL Companies and its Subsidiaries maintain the existing relations with franchisees, customers, suppliers suppliers, creditors and other persons business partners having business dealings with which the PEPL Companies. In addition, from and after the date hereof to the Closing Date, except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Disclosure Schedule, Sellers shall not permit any PEPL Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, includingto, without limitation, the timely filing prior written consent of all reports, forms Acquiror (which consent shall not be unreasonably withheld or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.
(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, delayed): (i) declare amend its Certificate of Incorporation, By-Laws or pay other comparable charter or organizational documents or merge with or into or consolidate with any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.person; (ii) splitissue, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect ofsell, in lieu pledge, dispose of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sellencumber, or authorize or propose the issuance, delivery sale, pledge, disposition or sale encumbrance of, any shares of, or securities convertible or exchangeable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its capital stock or subdivide or in any way reclassify any shares of its capital stock or change or agree to change in any securities convertible into any such shares manner the rights of its outstanding capital stock; (iii) except as may be required by agreements or arrangements identified in the Disclosure Schedule, grant any severance or termination pay to, or enter into, extend or amend any rightsemployment, warrants consulting, severance 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 wouldcompensation agreement with, or could reasonably be expected to, result in any of otherwise increase the conditions set forth in Article VI not being satisfied.
(c) 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 compensation or benefits provided to any of its Subsidiaries todirectors, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws officers or other equivalent organizational documentsemployees whose annual base salary is in excess of $100,000; (iiiv) incur sell, lease, license, mortgage or otherwise encumber or subject to any indebtedness for borrowed money lien or guaranty otherwise dispose of any such indebtedness properties or assets material to the Business having a fair market value in excess of another person$1 million individually or $10 million in the aggregate, 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 sales made in the ordinary course of business consistent with past practice); (iv) 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 (B) sales of obsolete or other assets not presently utilized in the Business; (v) implement any change in its accounting principles, practices or methods, other than as expressly may be required by GAAP or any Governmental Authority and other than as may be necessary or advisable in connection with the transactions contemplated by this Agreement hereby; (vi) make, change or consented revoke any Tax election or make any agreement or settlement regarding Taxes of any PEPL Company with any Tax authority, if such action would affect Acquiror or any of its Affiliates (including any PEPL Company) for taxable periods commencing after the Closing Date; (vii) (a) declare, set aside or pay any dividend or other distribution payable other than in Cash Equivalents, with respect to in writing by Parentany shares of any class or series of capital stock of the PEPL Companies; (b) split, combine or reclassify any shares of any class or series of capital stock of the PEPL Companies; or (c) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of capital stock of the PEPL Companies, or any instrument or security which consists of or includes a right to acquire such shares; (viii) make organize any change to the Company Benefit Plansnew Subsidiary or acquire any capital stock of, or equity or ownership interest in, any other Person; (ix) enter into modify, amend or terminate any leasing Material Contract or licensing agreementswaive, take-or-pay arrangements release or other affiliationsassign any material rights or claims under a Material Contract, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases except in the ordinary course of businessbusiness and consistent with past practice; (x) (A) incur or assume any long-term debt, or except in the ordinary course of business consistent with past practice, incur or assume short-term indebtedness (other than intercompany indebtedness) exceeding $5 million in the aggregate from the date hereof until the Closing; (B) modify the terms of any indebtedness or other liability, other than modifications of short-term debt in the ordinary and usual course of business and consistent with past practice; (C) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person, except as described in Section 5.1(a)(x) of the Disclosure Schedule; (D) enter into any material commitment or transaction (including, but not limited to, any material capital expenditure or purchase, sale or lease of material assets or real estate); or (xE) dispose of or permit to lapse any rights to any material intellectual property used or useful in the Business; (xi) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated, except policies providing coverage for losses not in excess of $1 million; (xii) enter into any contract or transaction relating to the purchase of assets material to the PEPL Companies, taken as a whole, other than in the ordinary course of business consistent with past practices; (xiii) pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (xiv) except as set forth in Section 2.3, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any PEPL Company; (xv) take any action that would or is reasonably likely to materially impair the ability of the Sellers to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and (xvi) authorize any of, or commit or agree to take any of of, the actions described referred to in this Section 5.1.
paragraphs (di) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections")xv) above. The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.5.2
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 Except as required by GAAP; (vi) make any change in employment terms for any of its directors applicable Law 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 Ancillary Agreement, during 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis period from the date of this Agreement through December 31to the Applicable Closing Date, 1999 the Seller will and will cause each member of the Seller Group to (i) conduct the Business in the Ordinary Course and (ii) use Reasonable Efforts to preserve intact their business organizations related to the Business and preserve their current business relationships with customers and all material suppliers, licensors, licensees, distributors and other Persons with which the Seller Group has business dealings, the assets listed in the India Capital Lease Agreement and China Deferred Sale Agreement (as agreed applicable). Subject to the Seller complying with its undertakings in this Section, the Purchaser accepts that such the India Leased Assets or the China Deferred Sale Assets may be destroyed or damaged prior to the Indian Capital Lease Closing or completion of the Chinese Closing (as applicable). In such circumstance, or if such assets are otherwise unavailable at the time of the Indian Capital Lease Closing or the completion of the Chinese Closing (as applicable) by reason only of an act or omission of a member of the Seller Group, such assets shall not be included in the relevant India Capital Lease Agreement and China Deferred Sale Agreement. Without limiting the generality of the foregoing, except as required by applicable Law or contemplated by this Agreement or any Ancillary Agreement prior to the Applicable Closing Date, the Seller will not take and the Seller will cause each member of the Seller Group not to take, any of the following actions in relation to the Business, without the consent of the Purchaser, which consent will not be unreasonably withheld, delayed or conditioned:
(a) enter into any transactions, contracts or understandings with third parties or with Affiliates of the Seller that would be binding on the Acquired Assets after the Applicable Closing, except for such transactions, contracts and understandings that are in the Ordinary Course and on commercial arm’s length terms;
(b) lease, license, sell, transfer, encumber or permit to be encumbered any material Acquired Assets, other than licenses granted (excluding real property licenses), products and services sold or assets otherwise disposed of in the Ordinary Course;
(c) waive or release any material right or claim to the extent relating to or arising from the Acquired Assets or the Assumed Liabilities, except in the Ordinary Course;
(d) commence any material action, suit, claim, hearing, processing, arbitration or mediation against any Material Supplier;
(e) enter into any settlement or release with respect to any action, suit, claim, hearing, proceeding, arbitration, mediation, audit, inquiry or investigation (whether civil, criminal, administrative or otherwise) involving any of the Acquired Assets, unless such settlement or release imposes no material ongoing limits or restrictions on the conduct or operations of the Business;
(f) (i) terminate any Material Contract, (ii) amend any lease of any Leased Real Property, (iii) materially amend any other Material Contract in a manner reasonably believed by the Company and Parent Seller to be adverse to the Business or (iv) enter into any Contract that would be a Material Contract;
(g) except as required by applicable Law or any applicable collective bargaining agreement, increase or agree to increase the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, base compensation of any transferred employee other than (i) in the aggregateOrdinary Course and in an amount that, with respect to any individual, does not exceed ******% of such individual’s base compensation as of the date hereof, (ii) in connection with any promotion of a transferred employee made in the Ordinary Course or (iii) in connection with annual merit increases in the Ordinary Course and in accordance with market practice; [Percentage base compensation increase redacted]
(h) relocate a material number of transferred employees to locations that are greater than 30 miles from such transferred employee’s respective work location as of the date hereof;
(i) hire any additional employees with respect to the Business;
(j) take any action that would result in the expiration, lapse, termination or abandonment of any Assigned Permit that is material to the Business;
(k) take any action that would reasonably be expected to have a Business Material Adverse Effect;
(l) sell, lease, mortgage, pledge or create or permit to be created any security interest on, any of the Acquired Assets other than liens or retention of title arising by operation of Law in the Ordinary Cause;
(m) enter into any new purchase commitments:
(i) in excess of those identified €****** placed under an R&D spending and external contractors; or [Purchase commitment amount redacted]
(ii) other than in accordance with good procurement practices which reflect the end-customer forecast demand and component lead times; or
(n) make any decision in respect of supply planning including submissions of forecasts to contract manufacturers; or
(o) agree to do any of the things described in the Projectionspreceding clauses of this Section 5.1.
Appears in 1 contract
Conduct of the Business. Pending From the Merger. ------------------------------------------date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9.01, except (i) as expressly contemplated hereunder, (ii) as required by Law, (iii) if the Purchaser shall have consented in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), (iv) in connection with the Pre-Closing Restructuring and as set forth in Section 6.11, (v) for any Intercompany Transactions or (vi) as set forth on Schedule 6.01, the Company shall (and shall cause each of its Subsidiaries to), and the Seller shall cause the Company and each of its Subsidiaries to, use reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and use its reasonable best efforts to preserve the goodwill and organization of its or their business and relationships with customers, suppliers, vendors, officers, employees, consultants and other Persons having business relations with the Company and its Subsidiaries, and the Company shall not, and shall cause each of its Subsidiaries not to, and the Seller shall cause the Company and each of its Subsidiaries not to:
(a) The issue, sell or deliver any Equity Interests;
(b) merge or consolidate the Company covenants or any of its Subsidiaries with any other Person (provided that, for the avoidance of doubt, nothing in this Section 6.01(b) shall prohibit any Subsidiary of the Company from merging or consolidating with any other Subsidiary of the Company);
(c) effect any recapitalization, reclassification, in-kind dividend, equity split or similar change in capitalization (except by any direct or indirect Subsidiary of the Company);
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any Equity Interests (except dividends paid by any direct or indirect Subsidiary of the Company);
(e) repatriate to the United States any amount of cash as a dividend in excess of $25,000,000 in the aggregate from any Subsidiary of the Company (or any joint venture which is not a Subsidiary and agrees that between to which the date Company or any of this Agreement and its Subsidiaries is a party) outside of the Effective TimeUnited States, unless Parent shall except in connection with the repayment of any intercompany loans or otherwise agree in writingthe ordinary course of business consistent with past practice;
(f) amend its certificate or articles of incorporation or limited liability company agreement (or equivalent organizational documents);
(g) make any redemption or purchase of any Equity Interests of the Company or any of its Subsidiaries, including the Membership Interests;
(h) sell, assign, transfer, mortgage, pledge, lease, license, sublicense or subject to any Lien, charge or otherwise encumber all or any portion of its assets, except (i) Company Permitted Liens, (ii) sales of products in the ordinary course of business and dispositions of assets that are obsolete, worn out surplus or no longer used and useful in the conduct of the business of the Company and its Subsidiaries shall be conducted only inSubsidiaries, and taken as a whole, (iii) any such transactions between or among the Company and and/or its Subsidiaries shall not take or (iv) any action except in, factoring arrangements entered into in the ordinary course of business and in a manner consistent with prior past practice, ;
(iii) abandon or permit to lapse any material Intellectual Property owned by the Company and or 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 Subsidiaries;
(j) disclose any trade secrets or material Confidential Information 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 significant to any Person, other than in the ordinary course of business relationsconsistent with past practice, and pursuant to a written confidentiality agreement (iii) including such a confidentiality agreement contained within the organizational documents of any joint venture to which the Company will comply or any of its Subsidiaries is a party);
(k) make any capital investment in, or any capital contribution or loan or advance to, or guaranty for the benefit of, any joint venture that is not a Subsidiary (except as required by the organizational documents thereof in all material respects with all applicable Laws and regulations wherever effect as of the date hereof) or other Person, except between or among the Company and/or its business is conducted, Subsidiaries;
(l) (i) for the calendar year 2018 (including, without limitationfor the avoidance of doubt, the timely filing portion of all reports, forms or other documents with the FCC and with the SEC required pursuant 2018 elapsed prior to the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of this Agreement and Agreement), make any capital expenditures or commitments in excess of $427,000,000 in the Effective Timeaggregate, or (ii) for the calendar year 2019, make any capital expenditures or commitments in excess of $107,750,000 in the aggregate in any calendar quarter;
(m) (i) enter into or modify any Company Affiliate Transactions or (ii) make any other payment to any Affiliate of the Company shall not, nor shall the Company permit (other than any of its Subsidiaries toSubsidiaries), other than, in the case of clause (ii), transactions made or entered into in accordance with Contracts made available to the Purchaser prior to the date of this Agreement, and any other Surviving Commercial Contracts;
(n) incur any Company Indebtedness, other than (i) declare Indebtedness available under Contracts governing the Company Indebtedness existing as of the date hereof in an amount not to exceed $100,000,000 in the aggregate, (ii) Indebtedness between or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of among the Company and/or any of its capital stockSubsidiaries, except for dividends (xiii) guarantees by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of Indebtedness of Subsidiaries of the Company, which Indebtedness is incurred in compliance with this Section 6.01, (yiv) with respect to the Convertible Preferred Stock Indebtedness arising solely from a change in GAAP and (ziv) with respect to Indebtedness for an amount not in excess of $25,000,000 in the preferred stock of Speedchoice of Detroitaggregate outstanding at any one time;
(o) except (i) as required by applicable Law, Inc.; or (ii) split, combine to the extent required under any Company Benefit Plan set forth on Schedule 3.13(a) or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities Contract in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase 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 (x) the exercise of Company Options outstanding effect as of the date of this Agreement, (yA) exercise grant to any current or former director, independent contractor, consultant, employee or officer of warrants and the Company or any its Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to any such Person not previously receiving or entitled to receive such compensation, except in the ordinary course of business with respect to any such Person with an annual base salary or base wages of less than $200,000, (zB) conversion grant to any Person any severance, retention, change in control or termination compensation or benefits or any increase therein, except with respect to new hires (with an annual base salary or base wages of Convertible Preferred Stock; less than $200,000) or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, (vC) willfully take enter into or adopt any action that would make the Company's representations and warranties set forth material Company Benefit Plan or amend in Article III not true and correct in all any material respects; respect any material Company Benefit Plan or (viD) enter into or adopt any material benefit plan, agreement, or other arrangement that provides severance, change in control, retention, or similar benefits, or amend any material Company Benefit Plan or other arrangement that provides severance, change in control, retention or similar benefits, or (E) take any action that wouldto cause or accelerate the payment, funding, right to payment or could reasonably be expected to, result in vesting of any of the conditions set forth in Article VI not being satisfied.compensation or benefits (except as required pursuant to this Agreement);
(cp) The Company covenants and agrees that between the date of this Agreement and the Effective Time, hire any Person to be employed by the Company shall not, nor shall the Company permit or any of its Subsidiaries to, (i) amend its certificate or terminate the employment of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 employee of the Company or between the Company and any of its Subsidiaries (other than loans “for cause”), other than the hiring or advances terminating of employees with annual base salary or base wages less than $50,000 made 250,000 (provided that any such actions are in the ordinary course of business consistent with past practice); ;
(ivq) merge make, change or consolidate with revoke any other entity in material Tax election, change an annual Tax accounting period, adopt or change any transactionmaterial Tax accounting method, or sell file 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 amended material Tax Return, enter into any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations material closing agreement with respect to compensationTaxes, severanceor settle any material Tax claim, benefitsaudit, change assessment or dispute or surrender any material right to claim a refund of control payments or any other payments to employees, directors or affiliates of the Company or its SubsidiariesTaxes, 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 take any action or otherwise engage in any transaction or series of transactions outside of the ordinary course of business and inconsistent with past practice that could, or could be expected to, increase the Purchaser’s or its Affiliates’ inclusions of taxable income, following the Closing, pursuant to Sections 951 or 951A of the Code;
(r) implement any employee layoffs implicating WARN, except for any such layoffs that result in liabilities of less than $500,000 in the aggregate;
(s) settle, release, waive or compromise any Claim, or other pending or threatened proceedings by or before a Governmental Entity if such settlement, release, waiver or compromise (i) with respect to the payment of monetary damages, involves the payment by the Company or any of its Subsidiaries of monetary damages exceeding $10,000,000 individually or $40,000,000 in the aggregate, (ii) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole, or (xiii) commit with respect to any Claim set forth on Schedule 6.01(s);
(t) terminate or materially modify or amend any Company Material Contract, Company Leased Real Property Lease or Company Landlord Lease, or enter into any Contract that, if existing prior to the date of this Agreement, would be a Company Material Contract, or enter into any Company Leased Real Property Lease or Company Landlord Lease other than in the ordinary course of business;
(u) adopt a plan or agreement of complete or partial liquidation or dissolution of the Company or any of its Subsidiaries, except (i) in connection with a consolidation, reorganization, or similar transaction solely relating to any of the Company’s Subsidiaries and (ii) the liquidation or dissolution of any dormant Subsidiary of the Company; or
(v) agree to take take, make any commitment to take, or adopt any resolutions in support of, any of the actions described prohibited by this Section 6.01; provided, that with respect to any joint venture that is not a Subsidiary, the Company shall not, and shall cause its Subsidiaries not to, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), exercise any material right, approval or remedy (or omit to take any action required to preserve any such right, approval or remedy) provided thereto under the organizational documents of such joint venture. Without limiting the scope of covenants of the Seller and the Company set forth in this Section 5.1.
6.01, the Parties acknowledge and agree that (dx) The nothing contained in this Section 6.01 is intended to give the Purchaser, directly or indirectly, the right to direct the control or operations of the Company Disclosure Letter sets forth or any of its Subsidiaries prior to the projected operating expenses Closing and capital expenditures for (y) prior to the Closing, subject to this Section 6.01, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of it and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the ProjectionsSubsidiaries.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tenneco Inc)
Conduct of the Business. Pending Subject to applicable Law, from the Merger. ------------------------------------------date hereof until the earlier of the Closing and the termination of this Agreement, except (i) as otherwise contemplated by this Agreement or any Ancillary Agreement, (ii) as may be required to comply with Law, (iii) as set forth on Section 6.1 of the Disclosure Schedules, or (iv) as otherwise consented to by Buyer (such consent not to be unreasonably withheld, delayed or conditioned):
(a) The the Sellers shall cause each Acquired Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, to (i) carry on the business of the such Acquired Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior past practice, (ii) the Company maintain its existence in good standing and use 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 customersall senior management employees, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) operate the Company will comply business in all material respects compliance with all applicable Laws in all material respects; and regulations wherever its business is conducted, including, without limitation, (iv) comply with the timely filing terms of all reportsMaterial Contracts in all material respects; and (v) maintain in full force and effect all Permits necessary to carry on the business of the Acquired Companies in all material respects; provided, forms however, that the Sellers shall not be obligated to provide, directly or other documents with the FCC and with the SEC required pursuant indirectly, any funds to the Securities Act or the Exchange Actany Acquired Company.
(b) The the Sellers shall not permit any Acquired Company covenants and agrees to:
(i) (A) sell, lease, transfer or otherwise dispose of or encumber or permit all or any material portion of the assets of such Acquired Company (whether tangible or intangible) to be sold, transferred, assigned, pledged or encumbered, other than in the ordinary course of business; (B) extend, materially amend, cancel or terminate any Material Contract, except for modifications or extensions of existing Material Contracts either contemplated by their terms or otherwise undertaken in the ordinary course of business; or (C) enter into any Contract that between would have been a Material Contract if entered into prior to the date hereof (other than Material Contracts entered into in the ordinary course of this Agreement and the Effective Timebusiness, the Company shall notincluding with respect to securitization transactions);
(ii) amend any organizational documents of any Acquired Company;
(iii) (A) hire any new employees with a base salary in excess of one-hundred thousand dollars ($100,000) or otherwise grant any material salary, nor shall the Company permit wage or compensation increase or increase any employee benefit for any of its Subsidiaries tothe existing employees, including incentive, commission or bonus payments, except in the ordinary course of business or as may be required under existing Contracts; or (iB) enter into, establish, adopt, amend or provide discretionary benefits under any material employee benefit plan (including any company benefit plan and any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement (or similar arrangement) related thereto) or take any action to accelerate the vesting or exercisability of any options or other compensation or benefits of any employees; (C) take any action that could create any obligation or other liabilities under the WARN Act; or (D) modify or waive any non-competition, non-solicitation, confidentiality or other similar obligation of any current or former employee;
(iv) create, incur, assume or guarantee or otherwise become responsible for any Indebtedness applicable to any Acquired Company, in each case, except in the ordinary course of business;
(v) declare or pay any dividends on dividends, in each case, other than any distribution or dividend comprised exclusively of Distributable Cash;
(vi) except as necessary to comply with applicable Laws, make other distributions any material changes in any Guidelines;
(whether in cash, stock or propertyvii) in respect of (A) effect any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Companyrecapitalization, (yB) with respect issue any equity interests, or rights, warrants or options to purchase its equity interests, as the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.case may be; (iiC) split, combine or reclassify any of its capital stock equity interests, as the case may be, 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 stockequity interests, as the case may be; or (iiiD) repurchase purchase, 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 stockequity interests, 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.equity interests;
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 lift or terminate any change to the Company Benefit Plans; (ix) enter into any leasing existing Hedging Assets 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 related positions except in the ordinary course of business;
(ix) settle, or offer, agree or propose to settle, or consent to judgment in, any material Proceeding applicable to any Acquired Company, other than Proceedings relating to claims applicable to Loans made in the ordinary course (including Proceedings relating to foreclosures), with any Person or Governmental Authority involving such Acquired Company if such settlement would in any way bind Buyer or its Affiliates (including any Acquired Company after the Closing) or would materially adversely affect any Acquired Company; or
(x) (A) make, change or revoke any material Tax election; (B) change any Tax Period; (C) adopt or change any accounting method; (D) file any amended Tax Return; (E) enter into any closing agreement with respect to any Tax-related matter; (F) settle, compromise, concede or abandon any Tax claim or assessment relating to such Acquired Company; (G) surrender any right to claim a refund of Taxes; or (xH) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to such Acquired Company, in each case, to the extent such action would be reasonably expected to increase the Tax liability, or reduce any Tax attribute, of such Acquired Company for any Tax Period ending after the Closing Date; or
(xi) agree, resolve or commit or agree to take do any of the actions described in this Section 5.1foregoing.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Equity Interests Purchase Agreement (Redwood Trust Inc)
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants and agrees that between period from the date of this Agreement to the Closing, except as otherwise expressly provided in this Agreement, Seller shall operate the Business only in the ordinary course. Except as otherwise expressly provided in this Agreement or for the purpose of effecting the transactions contemplated herein, Seller shall use its commercially reasonable best efforts to preserve intact the present organization of the Business, keep available the services of the present officers and key employees of the Business and preserve relationships with customers, suppliers, licensors, licensees, contractors, distributors and others having business dealings with the Business. Without limiting the generality of the foregoing, from the date of this Agreement to the Closing, Seller, its Subsidiaries and the Effective TimeTransferred Companies shall not, unless Parent shall otherwise agree to the extent related to the Business:
(a) sell, lease, encumber, transfer or dispose of any assets or rights or acquire any material assets or rights that, in writingeither case, would be included in the Assets, except in the ordinary course of business;
(b) engage in any activity of the type sometimes referred to as “trade loading” or “channel stuffing” or in any other activity that reasonably could be expected to result in a material reduction, temporary or otherwise, in the demand for the products offered by the Business following the Closing, including sales of a product (i) with payment terms longer than terms customarily offered by Seller or any of its Subsidiaries for such product, (ii) at a greater discount from listed prices than customarily offered for such product, other than pursuant to a promotion of a nature previously used in the normal course of business of the Company Seller and its Subsidiaries shall be conducted only infor such product, and (iii) at a price that does not give effect to any previously announced general increase in the Company list price for such product, (iv) with shipment terms more favorable to the customer than shipment terms customarily offered by Seller and its Subsidiaries shall for such product, (v) in a quantity greater than the reasonable retail or wholesale (as the case may be) resale requirement of the particular customer or (vi) in conjunction with other material benefits to the customer not take any action except in, previously offered in the ordinary course of business and to such customer;
(c) except as otherwise expressly provided in this Agreement, waive any rights in respect of or write off any Account Receivable or fail to timely pay any account payable, except in either case other than in the ordinary course of business;
(d) enter into any material commitment or transaction except in the ordinary course of business;
(e) incur, create or assume any indebtedness for borrowed money or take or omit to take any action that results in an Encumbrance, other than a manner consistent with prior Permitted Encumbrance, being imposed on any asset that may be an Asset;
(f) change (or permit to be changed) any accounting or Tax procedure or practice, make (iior permit to be made) any Tax election or settle or compromise any Tax liability, in each case relating to the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel LeasesBusiness, to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships any of the Company and its Subsidiaries with customersAssets or any Transferred Company;
(g) except as otherwise expressly provided in this Agreement or for the purpose of effecting the transactions contemplated hereby, suppliers and other persons with which enter into, adopt, amend or terminate any Plan of the Company Transferred companies, increase in any manner the compensation or its Subsidiaries has significant business relationsbenefits of any officer, and (iii) employee or consultant or pay or otherwise grant any benefit not required by any Plan of the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedTransferred Companies, includingor enter into any contract to do any of the foregoing, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant except to the Securities Act or the Exchange Act.extent bound by applicable law;
(bh) The Company covenants and agrees that between the date of except as otherwise expressly provided in this Agreement and or for the Effective Timepurpose of effecting the transactions contemplated hereby, the Company shall notenter into or offer to enter into or amend, nor shall the Company permit terminate or waive any right under any employment or consulting arrangement with any Person or any group of its Subsidiaries to, Persons;
(i) declare make or pay commit to any dividends on capital expenditures outside the ordinary course of business;
(j) enter into, amend or make other distributions (whether terminate any contract of a type that, if in cash, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of effect at the date of this Agreement, (ywould be required to be disclosed pursuant to Section 3.17(a) exercise or, except in the ordinary course of warrants and (z) conversion of Convertible Preferred Stock; (v) willfully take business, enter into, amend or terminate 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 conditions set forth in Article VI not being satisfied.other contract;
(ck) The Company covenants and agrees that between pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) relating to the date Business, except in the ordinary course of this Agreement and the Effective Timebusiness;
(l) settle or compromise any material claim, action, suit or proceeding pending or threatened against Seller, the Company shall notBusiness or the Assets, 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) 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 except in the ordinary course of business consistent with past practice); or for the purpose of effecting the transactions contemplated hereby;
(iv) 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; (ixm) enter into any leasing transaction or licensing agreementsany contract with any Subsidiaries, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases except in the ordinary course of business; or or
(xn) commit take, or agree or otherwise commit to take take, any of the foregoing actions described or any other action that if taken would cause any representation or warranty of Seller or the Selling Subsidiaries contained in this Agreement to be untrue or incorrect as of the date when made or as of any subsequent date (as if made as of such date) or that could prevent the satisfaction of any condition set forth in Article VI. Notwithstanding the foregoing, the covenants in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it 5.1 shall not incur material operating expenses prevent Seller from disposing of part or capital expenditures, all of its interest in the aggregate, in excess equity or assets of those identified in the ProjectionsChinaWeal Group or Lenovo AI or taking any of the other actions set forth above with respect to the ChinaWeal Group or Lenovo AI.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date of this Agreement and through the Effective TimeClosing Date, unless Parent otherwise expressly contemplated by this Agreement or the Ancillary Agreements, required by Law or with the prior written consent of Imation (such consent not to be unreasonably withheld or delayed), TDK shall otherwise agree in writing, conduct the Business as follows:
(ia) the business of Relevant Entities shall conduct the Company and its Subsidiaries shall be conducted Business only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course Ordinary Course of business Business and in a manner consistent accordance 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 significant business relations, and (iii) 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.Law; **;
(b) The Company covenants and agrees none of the Relevant Entities shall amend or modify any Material Contract or enter into any Contract, other than Contracts for the purchase or sale of Subject Products or Ancillary Products entered into in the Ordinary Course of Business, that between would have been a Material Contract if such Contract had been in effect on the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, Agreement;
(ic) 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 dividends (x) by a wholly owned Subsidiary none of the Company to the Company Relevant Entities (other than TDK) shall issue, sell or another wholly owned Subsidiary otherwise dispose of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue equity interests, or authorize grant any options, warrants or propose the issuance of other rights to purchase or obtain (including upon conversion, exchange or exercise) any other securities in respect of, in lieu of or in substitution for shares of its capital stock; ;
(iiid) repurchase or otherwise acquire any shares each of the Relevant Entities shall, in each case to the extent relating primarily to the Business, (i) use its commercially reasonable efforts to preserve its business organization and goodwill, keep available the services of its capital stock; (iv) issueofficers, deliver or sellemployees and consultants and maintain satisfactory relationships with vendors, or authorize or propose the issuancecustomers and others having business relationships with it, 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (zii) conversion of Convertible Preferred Stock; (v) willfully not 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 wouldrender, or that reasonably could reasonably be expected toto render, result any representation or warranty made by TDK in any this Agreement that is not expressly made as of a specified date other than the conditions set forth in Article VI not being satisfied.
(c) The Company covenants Closing Date untrue on the Closing Date as though then made and agrees that between as though the Closing Date had been substituted for the date of this Agreement and in such representation or warranty, including any actions referred to in Section 2.7;
(e) none of the Effective TimeRelevant Entities shall (i) make or rescind any material express or deemed election relating to Taxes, the Company shall not(ii) amend any Return, nor shall the Company permit (iii) settle or compromise any Litigation relating to Taxes or (iv) change any of its Subsidiaries tomethods of reporting income or deductions for federal, state, local or foreign income Tax purposes from those employed in the preparation of the last filed federal, state, local or foreign income Tax Returns; provided, however, that TDK shall be entitled to prepare and file Returns for Tax periods ending on or prior to the Closing Date for which Imation is entitled to indemnification under Section 10.2(a), provided, further, ** The appearance of a double asterisk denotes confidential information that has been omitted from the exhibit and filed separately, accompanied by a confidential treatment request, with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. that TDK shall provide Imation’s certified public accountants with an opportunity to review such Returns to the extent they relate to the Business and an opportunity to comment thereon to the extent they would effect any of items (i)-(iv) above.
(f) none of the Relevant Entities shall change any of its methods of accounting in effect on the Latest SCA&L Date, other than changes required by Local GAAP;
(g) none of the Relevant Entities shall cancel or terminate, or permit the cancellation or termination of, any insurance policy under which any of the Acquired Assets or Acquired Entities is insured or allow any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing substantially similar coverage to the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect; and
(h) none of the Relevant Entities shall make any increase in the compensation or benefits of any Active Employee except (i) amend its certificate in the Ordinary Course of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; Business, (ii) incur any indebtedness for borrowed money such retention plans implemented by TDK or guaranty any such indebtedness its Affiliates with respect to employees of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing tothe Relevant Entities as TDK deems appropriate in connection herewith, 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) 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 otherwise 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 5.1Agreement.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Acquisition Agreement (Imation Corp)
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants and agrees that between period from the date of this Agreement to the First Closing, except as otherwise expressly permitted under the terms of this Agreement or provided on Schedule 5.1, or upon receipt of Purchaser’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Seller Parties shall, and shall cause the Subject Entities, the LIHTC Funds and their respective Subsidiaries to, conduct the Business only in the ordinary course consistent with past practice and shall, and shall cause the Subject Entities, the LIHTC Funds and their respective Subsidiaries to, use their commercially reasonable efforts to preserve intact the present organization of the Subject Entities, the LIHTC Funds and their respective Subsidiaries and the Effective TimeBusiness, unless Parent shall otherwise agree in writing, (i) keep available the business services of the Company and its Subsidiaries shall be conducted only inBusiness Employees, and to preserve relationships with customers, suppliers, licensors, licensees, contractors, distributors, investors and others having business dealings with any of the Company Subject Entities, the LIHTC Funds or their respective Subsidiaries or with the Business. Without limiting the generality of the foregoing, from the date of this Agreement to the First Closing, except as otherwise expressly permitted under the terms of this Agreement or as may be required to effect the transactions contemplated by this Agreement (including the Restructuring, the Remainder Funds Restructuring and its the Second Closing Restructuring), the Seller Parties shall not, and shall cause the Subject Entities, the LIHTC Funds and their respective Subsidiaries shall not take to, do any action of the following without Purchaser’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed):
(a) sell, lease, transfer or dispose of any Assets, any assets of the Subject Entities, the LIHTC Funds or their respective Subsidiaries or any assets otherwise primarily used in the Business except in, in the ordinary course of business and as would not be material to the Business;
(b) any acquisition by the Subject Entities, the LIHTC Funds or their respective Subsidiaries, or otherwise by any Seller Party or any of its Affiliates (other than the Subject Entities, the LIHTC Funds or their respective Subsidiaries) for use primarily in the Business, of assets or properties for an aggregate purchase price in excess of $150,000;
(c) incur, create or assume any Indebtedness relating to the Business, or of the Subject Entities, the LIHTC Funds or their respective Subsidiaries, which exceeds $25,000 individually, or $100,000 in the aggregate, except as may be required to effect a manner consistent Bridge Resolution in accordance with prior practicethis Agreement, or take any action that results in an Encumbrance, other than a Permitted Encumbrance, being imposed on any Assets, any assets of the Subject Entities, LIHTC Funds or their respective Subsidiaries or any assets otherwise primarily used in the Business;
(d) enter into, adopt, amend or terminate any Company Plan as it applies to the Business Employees or the Business or any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries;
(e) materially increase the compensation or benefits of any Business Employee or pay or otherwise grant any material benefit not required by any such Company Plan to a Business Employee;
(f) except as provided in Section 5.7 of this Agreement, enter into or offer to enter into or amend, terminate or waive any right under any employment or consulting agreement or arrangement with any Business Employee;
(g) make or commit to make capital expenditures by the Subject Entities, the LIHTC Funds or their respective Subsidiaries in excess of $25,000 individually or $150,000 in the aggregate;
(h) enter into any contract or agreement that, if it were in effect as of the date hereof, would constitute a Material Contract, or amend or terminate any Material Contract;
(i) amend the Organizational Documents of any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries;
(j) merge or consolidate any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries with any other Person;
(k) liquidate or dissolve or adopt any plan of complete or partial liquidation or dissolution;
(l) issue, sell, otherwise dispose of, repurchase or redeem any capital stock or other equity or ownership interests or securities of, or Indebtedness of, any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries, or grant any options, warrants, calls, rights or commitments or any other agreements of any character obligating any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries to issue any capital stock or other equity or ownership interests or securities, or any Indebtedness, thereof;
(m) declare, set aside or pay any dividend or other distribution with respect to any capital stock or other equity or ownership interests or securities of any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries, other than (i) dividends or other distributions payable to any of the Subject Entities, the LIHTC Funds or their respective Subsidiaries, (ii) dividends or other distributions of Paid Management Fees (which, for the Company and its Subsidiaries avoidance of doubt, shall use all commercially reasonable efforts to maintain and protect reduce the FCC Licenses and Channel LeasesFirst Closing Purchase Price as provided in Section 2.3), 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 significant business relations, and (iii) the Company will comply LP Sale Proceeds;
(n) change any accounting or Tax procedure or practice, make or change any Tax election or settle or compromise any Tax liability, or amend any material Tax Return, in all material respects with all applicable Laws and regulations wherever its business is conducted, including, without limitationeach case relating to the Business or any of the Subject Entities, the timely filing LIHTC Funds or their respective Subsidiaries and that may adversely affect Purchaser, the Business, or any of all reportsthe Subject Entities, forms the LIHTC Funds or other documents their respective Subsidiaries after the First Closing Date (or, in the case of the Acquired Remainder Funds, the Second Closing Date) with respect to taxable periods or portions thereof beginning after the FCC and with First Closing Date (or, in the SEC case of the Acquired Remainder Funds, the Second Closing Date), in each case except as required pursuant by Law or by the independent auditors of such Persons;
(o) waive or release any material claim or right relating to the Securities Act Business or of any of the Exchange Act.Subject Entities, the LIHTC Funds or their respective Subsidiaries;
(bp) The Company covenants and agrees that between redeem, repurchase, prepay, defease, incur or otherwise acquire any indebtedness for borrowed money, or otherwise make an advance or payment with respect to the date Advanced Loans, except for the payment of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit accrued interest;
(q) request or accept or acknowledge receipt of any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) reimbursement from Landlord in respect of any of its capital stockLandlord Contribution, except for dividends (xas such term is defined pursuant to Section 5.2(b) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, Real Property Lease;
(yr) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 release 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, utilize Fund Cash Balances other than the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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); or
(ivs) merge agree 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 otherwise commit to do any of its directors or officers; (vii) alter, amend or create the foregoing. Notwithstanding 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, providedforegoing, the Company may renegotiate any Channel Leases in the ordinary course of business; Seller Parties, Subject Entities, LIHTC Funds or (x) commit or agree their respective Subsidiaries shall be permitted to take any action (a “Fiduciary Duty Action”), or cause any action to be taken, which, the Seller Parties, Subject Entities, LIHTC Funds or their respective Subsidiaries reasonably believe would be required to prevent the Seller Parties, the Subject Entities or their respective Subsidiaries from violating any fiduciary duty owed by them in their capacity as the general partner of any of the LIHTC Funds, provided that (i) the Seller Parties, Subject Entities, LIHTC Funds or their respective Subsidiaries provide Purchaser with electronic or written notice (a “Fiduciary Duty Action Notice”) four Business Days prior to taking any Fiduciary Duty Action, (ii) the Fiduciary Duty Action does not involve or result in any payment or disbursement to the Seller Parties or their respective Subsidiaries and (iii) the Seller Parties, Subject Entities, LIHTC Funds or their respective Subsidiaries (as the case may be) take only the actions described required to be taken in this Section 5.1.
order to not violate any fiduciary duty owed by them in their capacity as the general partner of any of the LIHTC Funds. If Purchaser reasonably believes such Fiduciary Duty Action is materially adverse to the Business or the value of the LIHTC Funds, Purchaser shall provide electronic or written notice (da “Fiduciary Duty Action Dispute Notice”) The Company Disclosure Letter sets forth to the projected operating expenses and capital expenditures for Company and its Subsidiaries on Seller Parties within four Business Days of receipt of a consolidated basis from Fiduciary Duty Action Notice indicating that Purchaser believes the date Fiduciary Duty Action will be materially adverse to the Business or the value of this Agreement through December 31the LIHTC Funds. In the event that Purchaser does not provide a timely Fiduciary Duty Action Dispute Notice, 1999 as agreed to the Fiduciary Duty Action taken by the Company and Parent (the "Projections"). The Company agrees that it Seller Parties, Subject Entities, LIHTC Funds or their respective Subsidiaries shall not incur material operating expenses or capital expenditureshave any effect on the First Closing Purchase Price and shall not result in a First Closing Purchase Price adjustment. If Purchaser timely delivers a Fiduciary Duty Action Dispute Notice, in the aggregate, in excess of those identified in the ProjectionsSeller Parties and Purchaser will enter into good faith negotiations regarding a First Closing Purchase Price adjustment.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants and agrees that between period from the date of Agreement Date until the Closing, Seller shall, except as otherwise contemplated by this Agreement or as set forth on Schedule 4.01 and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and cause 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 significant business relations, and (iii) 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.
(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 Affiliates 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 dividends (x) by a wholly owned Subsidiary of operate the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 Business only in the ordinary course of business consistent with past practice); (iv) merge practices and shall, and shall cause its Affiliates to, use its or consolidate with any other entity in any transactiontheir reasonable efforts to preserve intact the Acquired Assets and the Business. Without limiting the generality of the foregoing, 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 and 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 otherwise contemplated by this Agreement, from the Agreement Date until the Closing Date, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld), Seller: (a) shall not, and shall cause its Affiliates not to, mortgage, pledge or consented subject to in writing by Parentany Lien (other than Permitted Liens) any Acquired Asset; (viiib) make any change shall, and shall cause its Affiliates to, use its and their reasonable efforts to maintain satisfactory relationships with and preserve the Company Benefit Plansgoodwill of suppliers and customers in connection with the conduct of the Business; (ixc) enter into shall not, and shall cause its Affiliates not to, transfer or grant any leasing rights or licensing agreements, take-or-pay arrangements options in or other affiliations, alignments or agreements with respect to any of the FCC Licenses, provided, Acquired Assets except for the Company may renegotiate any Channel Leases transfer of inventory in the ordinary course of business; (d) shall not, and shall cause its Affiliates not to, transfer to any Third Party any rights under any licenses, sublicenses or other agreements with respect to any Intellectual Property; (xe) commit shall, and shall cause its Affiliates to, conduct its marketing and promotional activities with respect to the Products in the ordinary course of the Business consistent with past practices; (f) shall not, and shall cause its Affiliates not to, institute any new methods of purchase, sale or operation nor institute any changes in the product pricing or in promotional allowances other than in the ordinary course of the Business consistent with past practices; (g) shall not, and shall cause its Affiliates not to, make any material changes in selling, pricing or advertising practices other than in the ordinary course of the Business consistent with past practices; and (h) shall not launch any Product packaging changes or Product line extensions and (i) not agree to take any of the actions described foregoing actions. Without limiting the foregoing in this Section 5.1clause (g), Seller shall not, and shall cause its Affiliates not to, engage in any special promotions of any Product.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending Except as contemplated by this Agreement, as set forth on Schedule 7.1, as required by Law, in connection with the Merger. ------------------------------------------
entry into customary sale bonus agreements covered by the definition of Company Transaction Expenses (aprovided, that the Sellers and the Company provide prior written notice to Buyer of any such sale bonus agreement that would or reasonably would be expected to result in a payment of $100,000 or more to any one Person) The or as otherwise consented to or requested in writing by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, from the date hereof through the Closing or earlier termination of this Agreement in accordance with Section 12, each of the Sellers and the Company covenants and agrees that between agrees: (w) to use its Reasonable Efforts to maintain and preserve substantially intact the Company’s and each of its Subsidiaries’ business organization and advantageous business relationships, including the Distributor Contracts, and retain the services of their officers and employees; (x) except for competitively sensitive information specific to the Xxxxxx or Sucrets brands (for which such correspondence shall solely be provided to Buyer’s legal counsel and other outside advisors), promptly to provide to Buyer copies of all written correspondence received by Xxxxxxx Group, Xxxxxxx Healthcare or the Company or any of its Subsidiaries from the five (5) largest retailers (by revenue) within the Xxxxxxx Group or Xxxxxxx Healthcare distribution network concerning product de-listings, and/or store count changes of five percent (5%) or more; (y) to disclose to Buyer (and provide Buyer copies of) any written notice or other communication received by the Company, any of its Subsidiaries or any Seller from any third party relating to a default or event which, with or without notice or lapse of time or both, would become a default, received subsequent to the date of this Agreement Agreement, under any Contract to which the Company or any of its Subsidiaries is a party or is subject, or any written notice or other communication received by the Company, any of its Subsidiaries or any Seller from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (z) to cause the Effective Time, unless Parent shall otherwise agree in writing, Company and each of its Subsidiaries not to:
7.1.1 (i) increase or decrease in any manner any compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, directors, managers, or consultants, other than routine wage increases for employees (other than officers) granted in the business Ordinary Course of Business or as required under the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take terms of any action except in, the ordinary course of business and in a manner consistent with prior practiceMaterial Contract, (ii) hire any additional officer or make any employee an officer who had not been one, or terminate the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect employment or remove the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to keep available the services officer status of their current officers and employees and to preserve the current relationships any existing officer set forth in Section 7.1.1 of the Company and its Subsidiaries with customersDisclosure Schedule, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) amend or enter into a new Plan or indicate or announce any intent to take such action, other than as required by applicable Law;
7.1.2 conduct the Company will comply Business other than 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 FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.Business;
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 or otherwise acquire any shares of its capital stock; (iv) 7.1.3 issue, deliver or sell, or authorize or propose the issuance, delivery or sale ofof (i) any Equity Securities (except upon and in accordance with the exercise of any Stock Option outstanding on the date hereof), any shares of its capital stock or (ii) any securities convertible into any such shares of its capital stockEquity Securities, or (iii) any rights, warrants warrants, calls, subscriptions or options to acquire Equity Securities;
7.1.4 amend any such shares of its Organizational Documents;
7.1.5 (i) sell, lease, license, encumber or convertible securities otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any stock appreciation rights, phantom stock plans or stock equivalents, of its assets other than (a) in the issuance Ordinary Course of shares Business, including sales of Company Common Stock upon (x) Inventory in the exercise Ordinary Course of Company Options outstanding as of the date of this AgreementBusiness, (yb) exercise sales of warrants obsolete assets or assets with no book value, and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date prepayments of this Agreement and the Effective TimeIndebtedness with excess cash, 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) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire, any corporation, partnership, association, joint venture or other business organization or division thereof;
7.1.6 incur any indebtedness for borrowed money or guaranty except in amounts necessary to fund the operation of the Business in the Ordinary Course of Business under lines of credit in existence as of the date hereof (including revolver draws), guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of such party or guarantee any debt securities of others;
7.1.7 otherwise guarantee another personPerson’s borrowing of money or other Indebtedness or other payment by, other than or the performance of, another Person;
7.1.8 modify or terminate any Material Contract (A) borrowings under existing lines except for the automatic termination of credit any such Material Contract in the Ordinary Course of Business upon the expiration of its term and issuances of purchase orders and media buys in the Ordinary Course of Business);
7.1.9 commence or settle any litigation, arbitration or proceeding (or under any refinancing of such existing linesthreat thereof) or any claim except for any matter set forth in Section 11.2.2 of the Disclosure Schedule or any matter involving or reasonably expected to involve less than $250,000 in the aggregate, or, to the extent that it would adversely affect the Company or its Subsidiaries in a Tax period or portion thereof beginning after the Closing, (Bi) indebtedness owing toimplement or adopt any change in its accounting principles, (ii) make or change any Tax election, adopt or change any accounting method, file or amend any Tax Return, enter into any closing agreement, settle any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or guaranties take any other similar action relating to the filing of indebtedness owing toany Tax Return or the payment of any Tax, the Company or (iii) make change its method of accounting for Income Tax purposes;
7.1.10 modify its existing cash management, credit collection and payment policies, procedures and practices (including any loans acceleration in the collection of accounts receivable, delay in the payment of accounts payable);
7.1.11 during any consecutive two (2)-month period, fail to incur or advances expend at least ninety-five percent (95%) of the cumulative amount of the Company’s and its Subsidiaries’ (i) merchandising and promotional activities and/or (ii) marketing, advertising and promotional programs for such two (2)-month period that, in each case, are set forth in the latest operating budget prepared for the Company and its Subsidiaries, a true, correct and complete copy of which was provided or made available to Buyer (the “Operating Budget”);
7.1.12 enter into any other person other than loans agreement (whether oral or advances written) by and 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 on the ordinary course one hand) and any Seller, any Affiliate of business consistent with past practice); (iv) merge or consolidate with any other entity in Seller, any transactionequityholder of any Seller, or sell any business employee, officer, director 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 manager of the Company or any of its SubsidiariesSubsidiaries (on the other hand), 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 each case, except as expressly otherwise contemplated by this Agreement Agreement, and except for agreements entered into by portfolio companies of any Seller or consented to in writing by Parent; Affiliate of any Seller (viiion the one hand) make any change to and the Company Benefit Plansor any Subsidiary of the Company (on the other hand) which are on arms-length terms and entered into in the Ordinary Course of Business; (ix) or
7.1.13 enter into any leasing Contract, or licensing agreementsotherwise become obligated, 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 action prohibited under this Section 5.17.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Stock Purchase Agreement (Prestige Brands Holdings, Inc.)
Conduct of the Business. Pending Except as otherwise provided herein or authorized by the Merger. ------------------------------------------Bankruptcy Court prior to the date hereof, from the date hereof until the Closing Date, the Sellers:
(a) The Company covenants and agrees that between shall conduct the date of this Agreement and the Effective Time, unless Parent shall otherwise agree Business 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 preserve intact the business organizations and protect the FCC Licenses relationships with third parties and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of their current officers and the present 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 significant business relations, and (iii) 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.Business;
(b) The Company covenants and agrees shall not take or agree to commit to take any action that between the date they know would make any representation or warranty of this Agreement and the Effective TimeSellers hereunder inaccurate in any material respect at, or as of any time prior to, the Company Closing Date;
(c) shall not, nor shall not offer credit terms or trade promotions to any Major Customers except in 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) ordinary course consistent with past practices with respect to the Convertible Preferred Stock applicable product lines of Sellers (Trolli, General Line Candy, Fruit Snacks and (zMarshmallow) with respect or except to the preferred stock of Speedchoice of Detroit, Inc.extent reasonably necessary to be competitive with competitors' product offerings; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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.and
(d) The Company Disclosure Letter shall not, without Purchasers' Consent, enter into any contract (other than a purchase order or sale order entered into in the ordinary course) which requires aggregate payments of at least $500,000. "Purchasers' Consent" means the Purchasers's consent (which shall not unreasonably be withheld) to the matters described in clause (d) of this Section. Purchasers shall be deemed to have given such consent if they shall not have notified either of Xxxxxx Xxxxxxxx by e-mail (Xxxxxxxx_x@xxxxxxxxx.xxx) or facsimile (847-444-2123) or Xxxxx Xxxxxx by e-mail (Xxxxxx_x@xxxxxxxxx.xxx) or facsimile (847-444-2114) of their disapproval of such contract or arrangement not later than the end of the next business day after delivery of an e-mail communication to each of Xxxx Xxxx (Xxxxx@Xxxxxxx.xxx) and Xxx Xxxxxxx (Xxxxxxxx@Xxxxxxx.xxx) which sets forth the projected operating expenses material terms and capital expenditures for Company and its Subsidiaries on conditions of such contract or arrangement. If Purchasers disapprove of any such arrangement or contract pursuant to this clause (d), then any event, condition or matter that arises in connection with, or as a consolidated basis from the date of this Agreement through December 31result of, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it such disapproval shall not incur material operating expenses in any manner (i) be deemed to be a breach of any of Sellers' representations, warranties, covenants or capital expendituresobligations under this Agreement, in the aggregate, in excess of those identified in the Projectionsor (ii) constitute a Material Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Favorite Brands International Inc)
Conduct of the Business. Pending Except as expressly set forth in this Agreement or the Merger. ------------------------------------------
(a) The Company covenants and agrees that between Restructuring Support Agreement, or as required by applicable Law, during the period from the date of this Agreement and to the Effective TimeDate, unless Parent shall otherwise agree in writing, (i) the business of the Company shall, and shall cause each of its Subsidiaries shall be conducted only into, and the Company and its Subsidiaries shall not take any action except in, operate in the ordinary course of business and in a manner accordance with their business judgment and, to the extent consistent with prior practicetherewith, (ii) the Company and its Subsidiaries shall use all their commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact in all material respects their current business organizations, to keep available the services of their current officers and material employees (in each case, other than voluntary resignations, terminations for cause or consistent with applicable fiduciary duties) and to preserve the current in all material respects their relationships of the Company and its Subsidiaries with customers, suppliers sales representatives, suppliers, distributors and other persons others, in each case, having material business dealings with which the Company or its Subsidiaries has significant business relationsSubsidiaries. Without limiting the generality of the foregoing, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedexcept as otherwise expressly provided by this Agreement or as set forth on Schedule 4.13, including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant prior to the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of this Agreement and the Effective TimeDate, the Company shall not, nor and shall cause its Subsidiaries not to, take any of the following actions without the prior written consent of the Required Backstop Interest, which consent shall not be unreasonably withheld, conditioned or delayed; provided that in solely the case of clause (m) below, the prior written consent of only the Backstop Sponsor (which consent shall not be unreasonably withheld, conditioned or delayed) and not the Required Backstop Interest shall be required, so long as all materials and other information that have been provided to the Backstop Sponsor in connection with such consent shall have been made available to the Board of Directors (or other governing body) of the Company permit and the other Backstop Parties (unless a Backstop Party has requested not to receive such information) substantially contemporaneously with such materials and information being made available to the Backstop Sponsor:
(a) directly or indirectly, through any Person, seek, solicit, propose, support, assist, engage in negotiations in connection with or participate in the formulation, preparation, filing or prosecution of, any plan, plan proposal, restructuring proposal, offer of dissolution, winding up, liquidation, sale or disposition, reorganization, merger or restructuring of the Company, Parent or any of their respective Subsidiaries, other than the Plan, or take any other action that would reasonably be expected to prevent, interfere with, delay or impede the Exchange Offer in any way, the solicitation of votes on the Plan, the approval of the Disclosure Statement or the implementation or consummation of the Plan or the Restructuring Transactions;
(b) amend or modify (other than technical, non-substantive modifications, which changes shall not in any event be adverse in any material respect to the Backstop Parties) the Restructuring Support Agreement or the Plan;
(c) withdraw or revoke the Restructuring Support Agreement or the Plan or publicly announce its intention not to pursue the Restructuring Support Agreement or the Plan;
(d) file any motion or pleading or other Definitive Document or pleading with the Bankruptcy Court (including any modifications or amendments thereof) that, in whole or in part, is not consistent in any material respect with this Agreement, the Restructuring Support Agreement or the Plan;
(e) incur or commit to incur any capital expenditures in excess of the amounts permitted under the DIP Facility in the ordinary course of business;
(f) acquire or agree to acquire by merging or consolidating with, or purchase any portion of the stock of, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture or limited liability company;
(g) sell, lease, mortgage, pledge, grant any Encumbrance (other than a Permitted Encumbrance) on or otherwise encumber or dispose of any of its Subsidiaries toproperties or assets including the capital stock or equity interests of any Aquilex Party, other than sales or disposals of tangible assets in the ordinary course of business or as contemplated by the DIP Facility;
(h) (i) declare declare, set aside or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its the capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary stock of the Company, except for intracompany dividends or distributions (yother than to any direct or indirect parent of the Company) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; or (ii) splitpurchase, 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 or offer to 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 of the Company or any direct or indirect parent of the Company or any other securities convertible into thereof or any such shares of its rights including capital stock, units, limited liability company interests or any rightspartnership interests, warrants or options to acquire any such shares or convertible securities other securities;
(i) adjust, split, combine or reclassify any capital stock appreciation rights, phantom stock plans or stock equivalents, other than equity interests or issue or propose or authorize the issuance of shares of Company Common Stock upon any other securities (xincluding options, profits interests, warrants or any similar security exercisable for, or convertible into, such other security) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.;
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iij) incur or suffer to exist any indebtedness Indebtedness for borrowed money in excess of $100,000, except for Indebtedness arising pursuant to and in accordance with the terms of the DIP Facility, if applicable; the Bridge Facility; Section 1.3(a); the proposed amendment and restatement of the First Lien Credit Agreement as described in the Term Sheet; or guaranty other Indebtedness permitted under the DIP Facility, if applicable, or the Bridge Facility, in either case, incurred in the ordinary course of business;
(k) incur or suffer to exist any such indebtedness Encumbrances, except as expressly permitted under the DIP Facility, if applicable, or the Bridge Facility and any other Permitted Encumbrances;
(l) enter into any commitment or agreement with respect to debtor-in-possession financing or the use of another personcash collateral, other than (Ai) borrowings under existing lines in connection with the DIP Facility and consistent with the terms of credit an order approving the DIP Facility or (ii) any other debtor-in-possession facility provided by the “Second Lien Lenders” (as defined in the Restructuring Support Agreement) that is junior in priority to “First Lien Facility” (as defined in the Restructuring Support Agreement);
(m) enter into, assume or reject or amend, restate, supplement, modify, waive or terminate any Material Contract (or under Contract that would be a Material Contract if entered into prior to the date hereof) that is not a Company Benefit Plan, a Contract or group of related Contracts with any refinancing of such existing linesthe Company’s customers or suppliers involving amounts not in excess of $5,000,000 or as otherwise permitted pursuant to Sections 4.13(e) or 4.13(q);
(Bn) indebtedness owing to, move for an order from the Bankruptcy Court authorizing or guaranties directing the assumption or rejection of indebtedness owing to, any Material Contract (or Contract that would be a Material Contract if entered into prior to the Company date hereof) (iiiincluding any employment agreement or employee benefit plan) make any loans or advances to any other person unexpired lease other than loans in accordance with the Restructuring Support Agreement or advances between the Plan;
(o) guarantee any Subsidiaries Indebtedness of any Person (other than of the Company or between the Company and any of its Subsidiaries Subsidiaries) or enter into any “keep well” or other agreement to maintain any financial condition of another Person (other than loans a Subsidiary of the Company) or advances less enter into any arrangement having the economic effect of any of the foregoing;
(p) adopt or propose any amendments to any of the Company’s or its Subsidiaries’ respective certificates or articles of incorporation, bylaws or other Organizational Documents; except, in furtherance of the Restructuring or the Contemplated Transactions (and approved by the Required Backstop Interest to the extent not expressly set forth in this Agreement, the Restructuring Support Agreement or the Definitive Documents);
(q) except (i) as required by the terms of an existing Contract, agreement, arrangement, plan or policy disclosed to the Backstop Parties on a Schedule to this Agreement or (ii) as required to comply with Law, (A) enter into, adopt, amend or terminate any Company Benefit Plan, other than $50,000 made in the ordinary course of business consistent in connection with past practice); (iv) merge or consolidate with any other entity in any transaction, or sell any business or assets a new plan year that would not result in a single transaction or series of transactions material increase 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 cost to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries, (B) increase in any manner the compensation or benefits (including severance) of any director, officer or management level employee of the Company or any of its Subsidiaries with an annual salary or severance that is (or after giving effect to any such increase would be) in excess of $175,000, other than in the ordinary course of business in connection with respect a new welfare plan year applicable to alterations all employees under such plan that would not result in a material increase in cost to the Company or amendments made any of its Subsidiaries, or (C) terminate the employment of or hire any officer or management level employee of the Company or any of its Subsidiaries with respect an annual salary or severance in excess of $175,000, other than (1) a termination of employment for cause or if the failure to non-officers and non-directors do so would be inconsistent with the exercise of applicable fiduciary duties or (2) a hiring in order to fill a vacancy resulting from the termination of employment of an employee on terms that are substantially similar to those of the terminated employee;
(r) implement any employee layoffs that would result in an obligation to give notice at or before Closing under the WARN Act;
(s) commence any Proceeding (other than a Proceeding as a result of a Proceeding commenced against the Company or any of its Subsidiaries), or compromise, settle or agree to settle any Proceeding, other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of money damages not in excess of $250,000 individually 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 $1,000,000 in the ordinary course aggregate (excluding any damages covered by insurance), in any case without the imposition of businessany equitable relief;
(t) change materially its financial or tax accounting methods, except insofar as may have been required by a change in GAAP or applicable Law, or revalue any of its material assets;
(u) pursue, implement or effectuate any Inconsistent Transaction, or engage in any discussions, plans, efforts, negotiations, or activities related to any transaction, which if consummated, would be an Inconsistent Transaction; or or
(xv) commit or agree to take any of the actions described in this Section 5.1foregoing.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending Except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Merger. ------------------------------------------
Disclosure Schedule or in any other Section of the Disclosure Schedule, during the period from the date hereof to the Closing, Sellers shall, and shall cause the PEPL Companies to, taking into account any matters that may arise that are attributable to the pendency of the transactions contemplated by this Agreement, (a) The Company covenants conduct the Business only in the ordinary course, consistent with past practice and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (ib) use their respective reasonable best efforts to preserve the business organization of the Company and its Subsidiaries shall be conducted only inPEPL Companies intact, 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 the current officers and employees and to preserve the current relationships of the Company PEPL Companies and its Subsidiaries maintain the existing relations with franchisees, customers, suppliers suppliers, creditors and other persons business partners having business dealings with which the PEPL Companies. In addition, from and after the date hereof to the Closing Date, except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Disclosure Schedule, Sellers shall not permit any PEPL Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, includingto, without limitation, the timely filing prior written consent of all reports, forms Acquiror (which consent shall not be unreasonably withheld or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.delayed):
(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 amend its Certificate of Incorporation, By-Laws or pay other comparable charter or organizational documents or merge with or into or consolidate with any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; person;
(ii) splitissue, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect ofsell, in lieu pledge, dispose of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issue, deliver or sellencumber, or authorize or propose the issuance, delivery sale, pledge, disposition or sale encumbrance of, any shares of, or securities convertible or exchangeable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its capital stock or subdivide or in any way reclassify any shares of its capital stock or change or agree to change in any securities convertible into any such shares manner the rights of its outstanding capital stock;
(iii) except as may be required by agreements or arrangements identified in the Disclosure Schedule, grant any severance or termination pay to, or enter into, extend or amend any rightsemployment, warrants consulting, severance 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 wouldcompensation agreement with, or could reasonably be expected to, result in any of otherwise increase the conditions set forth in Article VI not being satisfied.
(c) 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 compensation or benefits provided to any of its Subsidiaries todirectors, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws officers or other equivalent organizational documents; employees whose annual base salary is in excess of $100,000;
(iiiv) incur sell, lease, license, mortgage or otherwise encumber or subject to any indebtedness for borrowed money lien or guaranty otherwise dispose of any such indebtedness properties or assets material to the Business having a fair market value in excess of another person$1 million individually or $10 million in the aggregate, 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 sales made in the ordinary course of business consistent with past practice); (iv) 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 (B) sales of obsolete or other assets not presently utilized in the Business;
(v) implement any change in its accounting principles, practices or methods, other than as expressly may be required by GAAP or any Governmental Authority and other than as may be necessary or advisable in connection with the transactions contemplated by this Agreement hereby;
(vi) make, change or consented revoke any Tax election or make any agreement or settlement regarding Taxes of any PEPL Company with any Tax authority, if such action would affect Acquiror or any of its Affiliates (including any PEPL Company) for taxable periods commencing after the Closing Date;
(vii) (a) declare, set aside or pay any dividend or other distribution payable other than in Cash Equivalents, with respect to in writing by Parentany shares of any class or series of capital stock of the PEPL Companies; (b) split, combine or reclassify any shares of any class or series of capital stock of the PEPL Companies; or (c) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of capital stock of the PEPL Companies, or any instrument or security which consists of or includes a right to acquire such shares;
(viii) make organize any change to the Company Benefit Plans; new Subsidiary or acquire any capital stock of, or equity or ownership interest in, any other Person;
(ix) enter into modify, amend or terminate any leasing Material Contract or licensing agreementswaive, take-or-pay arrangements release or other affiliationsassign any material rights or claims under a Material Contract, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases except in the ordinary course of businessbusiness and consistent with past practice;
(x) (A) incur or assume any long-term debt, or except in the ordinary course of business consistent with past practice, incur or assume short-term indebtedness (other than intercompany indebtedness) exceeding $5 million in the aggregate from the date hereof until the Closing; (B) modify the terms of any indebtedness or other liability, other than modifications of short-term debt in the ordinary and usual course of business and consistent with past practice; (C) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person, except as described in Section 5.1(a)(x) of the Disclosure Schedule; (D) enter into any material commitment or transaction (including, but not limited to, any material capital expenditure or purchase, sale or lease of material assets or real estate); or (xE) dispose of or permit to lapse any rights to any material intellectual property used or useful in the Business;
(xi) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated, except policies providing coverage for losses not in excess of $1 million;
(xii) enter into any contract or transaction relating to the purchase of assets material to the PEPL Companies, taken as a whole, other than in the ordinary course of business consistent with past practices;
(xiii) pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice;
(xiv) except as set forth in Section 2.3, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any PEPL Company;
(xv) take any action that would or is reasonably likely to materially impair the ability of the Sellers to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and
(xvi) authorize any of, or commit or agree to take any of of, the actions described referred to in this Section 5.1paragraphs (i) through (xv) above.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending During the Merger. ------------------------------------------
(a) The Company covenants and agrees that between period from the date of this Agreement and continuing until the Effective Timeearlier of the termination of this Agreement or the Closing, unless Parent Seller agrees, and agrees to cause its Subsidiaries and Affiliates, to (i) conduct the Business, except to the extent that Buyer shall otherwise agree consent in writing, (i) in the business Ordinary Course 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 practiceBusiness, (ii) pay the Company debts (including any annual fees payable to the Registrar of Corporate Affairs in the British Virgin Islands) and Taxes of Target, its Subsidiaries shall and the Business when due (subject to SECTION 4.1(E) below), (iii) pay or perform other obligations of Target, its Subsidiaries and the Business when due, and (iv) preserve intact the present business organizations of Target, its Subsidiaries and the Business, use all commercially its reasonable best 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 the present officers and employees Employees of Target, its Subsidiaries and the Business, and use its reasonable best efforts to preserve the current relationships of the Company and Target, its Subsidiaries and the Business with customers, suppliers suppliers, distributors, licensors, licensees, and other persons others having business dealings with which them, all with the Company goal of preserving unimpaired the goodwill and ongoing businesses of the Business at the Closing. Seller shall promptly notify Buyer of any event or occurrence or emergency not in the Ordinary Course of Business and any material event involving Target, its Subsidiaries has significant business relations, and (iii) 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.
(b) The Company covenants and agrees Business that between arises during the period from the date of this Agreement and continuing until 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 dividends (x) by a wholly owned Subsidiary earlier of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the termination date of this Agreement and or the Effective TimeClosing. In addition to the foregoing, 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) 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) 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 and except as expressly set forth 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 SECTION 4.1 of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses Schedule, Seller shall not, and capital expenditures for Company and shall cause its Subsidiaries on a consolidated basis and Affiliates not to, without the prior written consent of Buyer, from and after the date of this Agreement through December 31, 1999 as agreed Agreement:
(a) cause or permit any amendments to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.Charter Documents;
Appears in 1 contract
Samples: Share Purchase Agreement (Nuance Communications, Inc.)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date of hereof until the Closing Date, except as contemplated by this Agreement in connection with the organization of New Jetride, Seller shall, and the Effective Time, unless Parent shall otherwise agree cause Seller to, conduct the Business in writingthe Ordinary Course of Business, (i) the business of the Company and use 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 preserve intact the business organization and protect the FCC Licenses relationships with third parties and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of their the present employees of the Business. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as set forth on Schedule 5.01, unless Buyer otherwise agrees in writing, Seller will, and Parent will cause Seller to:
(a) use its commercially reasonable efforts to cause its current officers insurance (or reinsurance) policies not to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage at least equal to or substantially similar coverage to that provided under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(b) use its commercially reasonable efforts to carry on the Business in the same manner as presently conducted and to keep Seller’s business organization and properties intact, including its present business operations, physical facilities, working conditions and employees and to preserve its present relationships with lessors, licensors and customers and others having business relations with it, promote the current relationships smooth transition of the Company Business to Buyer, encourage employees to continue their employment with Seller or, if applicable, New Jetride until and its Subsidiaries with customersthrough the Closing, suppliers promptly notify Buyer of any change in any officers or directors of Seller, and other persons with which cause New Jetride to be duly organized under the Company laws of the State of Delaware under the name “Jetride, Inc.”, to be qualified to transact business in such jurisdictions where the nature or its Subsidiaries has significant business relationsor ownership of its properites require such qualification, to be capitalized with the Contributed Assets and to be subject only to the New Jetride Assumed Liabilities.
(c) maintain the material assets of Seller in good repair, order and condition consistent with current and planned needs (normal wear and tear excepted), replace in accordance with past practices its inoperable, worn out or obsolete assets with assets of good quality consistent with prudent practices and current needs, and in the event of a casualty, loss or damage to any of such assets or properties prior to the Closing Date, whether or not Seller is insured, either repair or replace such damaged property or use the proceeds of such insurance in such other manner as mutually agreed upon by Seller and Buyer, and make all capital expenditures consistent with past practices and Seller’s current plans for continuing operations and growth;
(iiid) maintain the Company will books, accounts and records of Seller in accordance with past custom and practice as used in the preparation of the Seller Financial Statements;
(e) comply in with all material respects with legal requirements and contractual liabilities applicable to the operations and Business of Seller and pay all applicable Laws Taxes when due and regulations wherever its business is conductedpayable;
(f) cooperate with Buyer, use commercially reasonable efforts and take such actions to cause the conditions to Buyer’s obligation to close to be satisfied (including, without limitation, the timely execution and delivery of all agreements contemplated hereunder to be so executed and delivered, cooperating in the making and obtaining of all third party and governmental notices, filings, authorizations, approvals, consents, releases and terminations, and causing New Jetride to be duly organized and capitalized with the Contributed Assets and to be subject only to the New Jetride Assumed Liabilities;
(g) deliver to Buyer from time to time, as promptly as practicable following the end of each month, an unaudited monthly balance sheet, income statement and statement of cash flow for the immediately preceding month, prepared using the same accounting principles and practices as used in the preparation of the Seller Financial Statements;
(h) except in the Ordinary Course of Business, not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax return of Seller, enter into any settlement agreement, settle any Tax claim or assessment relating to Seller, 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 Seller, or take any other similar action, or omit to take any action relating to the filing of all reportsany Tax Return or the payment of any Tax, forms if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other documents action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of Seller, New Jetride or Buyer;
(i) except in connection with the FCC organization and with the SEC required pursuant capitalization of New Jetride as contemplated herein, not issue, sell or transfer any notes, bonds or other debt securities, any equity securities, any securities convertible, exchangeable or exercisable into debt or equity securities, or warrants, options or other rights to the Securities Act acquire debt or equity securities of Seller or New Jetride or any profits interests, economic interests or similar rights;
(j) except as contemplated by this Agreement, not change or authorize any change in its articles of incorporation or code of regulations or the Exchange Act.certificate of incorporation or bylaws of New Jetride once such documents have been created;
(bk) The Company covenants not acquire any other business or Person (or any significant portion or division thereof), whether by merger, consolidation or reorganization or by purchase of assets or stock or other equity securities or acquire any other material assets;
(l) not enter into or establish or, except as required by the express terms thereof and agrees that between except in the Ordinary Course of Business, make or grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement, or make any contribution to any employment or labor agreement or any employee pension benefit plan or any employee welfare benefit plan which covers employees of Seller; not make or guarantee any loans to employees; and not make, grant or promise any bonus or any wage, salary or compensation increase in excess of $5,000 per year to any director, officer, employee or sales representative, group of employees or consultant;
(m) except for entering into Contracts and conducting normal operations in the Ordinary Course of Business, not take any other action (or agree or commit to take any action) that, if taken after the date of this Agreement the Seller Financial Statements 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 dividends (x) by a wholly owned Subsidiary of the Company prior to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, would require disclosure under Section 3.07 hereof;
(yn) exercise not (i) settle or compromise any claims or litigation, (ii) modify or amend in any respect or terminate or waive any material right or benefit under any Contracts, or (iii) waive, release or assign any rights or claims;
(o) except in connection with the organization of warrants and New Jetride, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(zp) conversion not agree or commit to do any of Convertible Preferred Stock; the foregoing. Seller will not (vx) willfully take or agree or commit to take any action that would make any representation and warranty of Seller hereunder inaccurate in any respect at, or as of any time prior to, the Company's representations and warranties set forth in Article III not true and correct in all material respects; Closing Date or (viy) omit or agree or commit to omit to take any action that would, necessary to prevent any such representation or could reasonably be expected to, result warranty from being inaccurate in any of the conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty respect at 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) 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 5.1time.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants Sellers covenant and agrees that agree that, between the date of this Agreement and the Effective TimeClosing Date, except as expressly contemplated by any other provision of this Agreement, unless Parent reasonably necessary to complete the Pre-Closing Restructuring or unless Purchaser shall otherwise agree consent in writing, writing (iwhich consent shall not be unreasonably withheld):
(a) the business of Sellers shall cause the Company and its the Subsidiaries to conduct their businesses only in the Ordinary Course of Business.
(b) Sellers shall be conducted only in, and cause the Company and its the 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 to use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact their its business organizationsorganization, to keep available the services of their current officers officers, employees, consultants and employees agents and to preserve the current relationships of relations and goodwill with suppliers, customers, landlords, creditors, employers, agents and other Persons with whom the Company and its the Subsidiaries with customers, suppliers and other persons with which have business relations.
(c) Sellers shall cause the Company or its and the Subsidiaries has significant business relations, and (iiii) the Company will comply to conduct their operations in compliance in all material respects with all applicable Laws Laws; (ii) to maintain in effect all Permits material to the operation of their respective businesses; and regulations wherever its business is conducted, including, without limitation, (iii) to give prompt notice to Purchaser of (A) any notice received by the timely filing of all reports, forms Company or any Subsidiary from any Governmental Body or other documents with the FCC and with the SEC required pursuant Person regarding any current, pending or proposed Action relating to the Securities Act Company or any Subsidiary; (B) any proposed imposition of any Order relating to the Exchange ActCompany or any Subsidiary; (C) the revocation, termination, suspension or limitation of any Permit of the Company or any Subsidiary; or (D) any other actual, pending or, to the Knowledge of Sellers, threatened event or Action that would reasonably be expected to materially and adversely affect the business, assets, liabilities, capitalization, prospects, condition (financial or otherwise) or results of operations of the Company or any Subsidiary.
(bd) The By way of amplification and not limitation of the foregoing, as reflected in Schedule 6.1(d) or as required by Law, Sellers shall not permit the Company covenants and agrees that or any Subsidiary to, between the date of this Agreement and the Effective TimeClosing, the Company shall notdirectly or indirectly, nor shall the Company permit any of its Subsidiaries todo, (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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect ofto do, in lieu of or in substitution for shares of its capital stock; (iii) repurchase 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI following, without the prior written consent of Purchaser (which consent shall not being satisfied.be unreasonably withheld, conditioned or delayed):
(c) 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) amend its certificate or otherwise change any of incorporation (including any certificate of designations attached thereto) their organizational documents or bylaws or other equivalent organizational documents; classification for income Tax purposes;
(ii) incur create, assume or permit to exist any indebtedness for borrowed money or guaranty any such indebtedness of another person, new Encumbrance other than (A) borrowings the interests of lessors under existing lines operating leases entered into in the Ordinary Course of credit (or under any refinancing of such existing lines) or Business and (B) indebtedness owing toPermitted Encumbrances;
(iii) issue, sell, pledge, dispose of, grant, encumber, or guaranties of indebtedness owing toauthorize the issuance, sale, pledge, disposition, grant or encumbrance of, the Membership Interests or any other equity securities of the Company or of any Subsidiary, other than Permitted Encumbrances;
(iiiiv) declare, set aside, make or pay any distribution payable in cash, equity securities, property or otherwise, with respect to any Membership Interests or other equity securities of the Company or any Subsidiary (other than (A) distributions to pay income Taxes in accordance with historical practices and (B) dividends or distributions by any Subsidiary of the Company);
(v) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, the Membership Interests or any other equity securities of the Company or any Subsidiary;
(vi) (A) acquire or dispose of (including by merger, consolidation or acquisition or disposition of equity securities or assets) any interest owned by the Company or any Subsidiary in any Person or any assets of the Company or any Subsidiary, other than the sale of inventory and disposal of obsolete assets in the Ordinary Course of Business; (B) incur any Company Indebtedness, except for Company Indebtedness incurred in the Ordinary Course of Business not in excess of $500,000; (C) make any loans or advances to any other person Person; (D) commit to make or make capital expenditures, other than loans pursuant to previously budgeted projects or advances between consistent with past practice; or (E) enter into, amend or terminate any Subsidiaries Material Agreement, other than in the Ordinary Course of Business;
(vii) license, sell, transfer or otherwise dispose of, in whole or in part, any Business Proprietary Rights other than in the Ordinary Course of Business;
(viii) increase the compensation payable or to become payable to contractors, managers, officers or employees of the Company or between the Company and any of its Subsidiaries (Subsidiary, other than loans or advances less than $50,000 made in the ordinary course Ordinary Course of business consistent Business in accordance with past practice); existing personnel policies;
(iv) 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; (viix) make offers to any change in employment terms for any of its directors contractors, managers, officers 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 employees of the Company or its Subsidiariesany Subsidiary for employment with any Person other than Purchaser, the Company or any Subsidiary after Closing, except for those individuals set forth on Schedule 6.1(d)(ix) of the Disclosure Schedule;
(x) grant any severance or termination pay to, or enter into any employment or severance agreement with, any officer or other employee of the Company or any Subsidiary, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course Ordinary Course of business consistent with past practice Business or except as expressly otherwise contemplated herein;
(xi) establish, adopt, enter into or amend any benefit provided under any collective bargaining agreement or Benefit Plan, other than as required by this Agreement any such collective bargaining agreement or consented Benefit Plan or required by Law in order to in writing by Parent; qualify for favorable Tax treatment;
(viiixii) make any material change in the accounting policies or procedures applied in the preparation of the Interim Financial Statements or the Audited Financial Statements or reduce any reserves in the Interim Financial Statements, except to the Company Benefit Plans; extent required by GAAP;
(ixxiii) enter into cancel, forgive, release, discharge, waive or accelerate the collection of any leasing accounts receivable or licensing agreements, take-or-pay arrangements any similar asset or other affiliations, alignments or agreements right with respect to the FCC LicensesCompany or any Subsidiary, providedor agree to do any of the foregoing, except in the Ordinary Course of Business;
(xiv) sell or factor any accounts receivable of the Company or any Subsidiary;
(xv) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction, in the Ordinary Course of Business, of Liabilities reflected or reserved against in the Audited Financial Statements and Interim Balance Sheet (including payoffs of Company Indebtedness) or subsequently incurred in the Ordinary Course of Business;
(xvi) compromise, settle or agree to settle any Action, other than compromises, settlements or agreements in the Ordinary Course of Business that involve only the payment of monetary damages not in excess of $500,000 individually, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company may renegotiate or any Channel Leases of its Subsidiaries;
(xvii) make or change or revoke any material Tax election (including an entity classification election under Treasury Regulation Section 301.7701-3) or settle or compromise any material Tax Liability, other than in the ordinary course Ordinary Course of businessBusiness, change its Tax year, amend any Tax Returns, or make any election, adopt any accounting method or fiscal year, or take any position in any Tax Returns relating to the Company or any Subsidiary that is inconsistent with the past practices of the Company and its Subsidiaries;
(xviii) renew or enter into any non-compete, exclusivity, non-solicitation or similar Contract that would restrict or limit, in any material respect, the operations of the Company and its Subsidiaries; or or
(xxix) commit or agree to take any of the actions described in subsections (d)(i) through (d)(xviii) of this Section 5.16.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date of this Agreement and hereof until the Effective TimeSubsequent Closing Date, unless Parent the Selling Parties shall otherwise agree conduct the Business 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 preserve intact the Business, the business organizations and protect relationships of the FCC Licenses Business and Channel Leases, to preserve substantially intact their business organizations, to goodwill with Third Parties and keep available the services of their current officers the present officers, employees, agents and employees and to preserve other personnel of the current relationships Business. Without limiting the generality of the foregoing, from the date hereof until the Subsequent Closing Date:
(a) without Jacob's prior consent, neither the Company nor any of the Company Subsidiaries will, nor will either of them agree to, and its Subsidiaries with customers, suppliers and other persons with which Parent will not permit the Company or its Subsidiaries has significant business relations, and (iii) 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.
(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, or to agree to:
(i) declare purchase or pay otherwise acquire assets or securities from any dividends on other Person, or make other distributions (whether in cash, stock sell or property) in respect of transfer any of its capital stock, except for dividends (x) by a wholly owned Subsidiary assets of the Company to or the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 equivalentsSubsidiaries, other than in the issuance ordinary course of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.business;
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personliability, other than except liabilities (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 incurred in the ordinary course of business consistent with past practice); (iv) 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 dollar amount of all such liabilities incurred by the Company does not exceed Five Hundred Thousand Dollars ($100,000 500,000), (B) incurred pursuant to existing obligations of the Company that are disclosed in the Disclosure Letter or greater; (C) expressly contemplated by the terms of this Agreement;
(iii) amend or modify in any material respect or terminate any Scheduled Contract or any other Contract entered into by the Company or the Company Subsidiaries after the date hereof which, if in existence on the date hereof, would be required to be set forth in Section 3.23(a) of the Disclosure Letter as a Scheduled Contract (each, a "Subsequent Material Contract");
(iv) make or commit to make any capital expenditure, or group of related capital expenditures, in excess of One Hundred Fifty Thousand Dollars ($150,000) for the Company or any Company Subsidiary, other than capital expenditures expressly required under any Scheduled Contract or any Subsequent Material Contract;
(v) change other than in the ordinary course of business, (A) increase the rate or terms of compensation payable or to become payable to its accounting policies except as required directors, officers or employees, (B) pay or agree to pay any bonus, stock option, severance, pension, retirement allowance or other employee benefit not provided for by GAAP; any Employee Plan, Benefit Arrangement or Employment Agreement set forth in the Disclosure Letter, or (C) enter into any material employment agreement with or for the benefit of any Person;
(vi) make any change in employment terms its accounting methods or in the manner of keeping its books and records or any change in its current practices with respect to accounting for or recording sales, receivables, payables or accrued expenses;
(vii) other than the repayment of intercompany debt and intercompany dividends between or among the Company Subsidiaries, declare or pay any dividend or make any distribution in respect of any of its directors Equity Securities, except for the Dividend or, directly or officers; (vii) alterindirectly, amend redeem, purchase or create otherwise acquire any obligations with respect to compensationof its Equity Securities or the Equity Securities of any of its Affiliates, severance, benefits, change of control payments or make any other payments of any kind to employees, directors the holders of any of its Equity Securities in respect thereof or affiliates to the holders of any Equity Securities of any of its Affiliates in respect thereof or issue any shares of Equity Securities except in connection with any vested options of the Company;
(viii) amend its charter documents;
(ix) sell, transfer or otherwise dispose of any of the Shares or any interest therein or create (or permit the creation of) any Share Encumbrance on any of the Shares, whether voluntarily or involuntarily;
(x) take or fail to take any action if such action or inaction would materially adversely affect the applicability of any insurance in effect on the date hereof that covers all or any of the assets of the Company, the Company Subsidiaries or its the Business; or
(xi) take any action or inaction or group or combination of actions or inactions that results in, or could reasonably be expected to result in, a breach of any representation, warranty, covenant or agreement contained in this Agreement or a Company Material Adverse Effect.
(b) the Company and the Company Subsidiaries will, and Parent will cause the Company and the Company Subsidiaries to:
(i) (A) maintain the Company and the Company Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors ' respective assets in the ordinary course of business consistent with past practice in reasonably serviceable operating order and condition, reasonable wear and tear, damage by fire and other casualty excepted, (B) promptly repair, restore or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) make replace any change material assets to the Company Benefit Plans; extent such repair, restructure or replacement would be done in the ordinary course of business and (ixC) enter into upon any leasing damage, destruction or licensing agreementsloss to any of such assets, take-or-pay arrangements or other affiliations, alignments or agreements apply any and all insurance proceeds received with respect thereto to the FCC Licensesprompt repair, providedreplacement and restoration thereof to the condition of such assets before such event to the extent reasonably practicable;
(ii) file all Tax Returns required to be filed and make timely payment of all applicable Taxes when due, in each case including any normal periods of extension;
(iii) comply with, and maintain the Company may renegotiate any Channel Leases effectiveness of, all material Permits; and
(iv) pay accounts payable and pursue collection of its accounts receivable in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending The Seller and each of the Merger. ------------------------------------------Shareholders covenant and agree with the Buyer that from and after the date hereof until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Seller shall, and the Shareholders shall cause the Seller to:
(a) The Company covenants and agrees that between operate the date of this Agreement Business and the Effective TimeTransferred Assets only in the usual, unless Parent shall otherwise agree in writingregular and ordinary manner with a view to maintaining the goodwill that the Seller now enjoys and, (i) to 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 extent consistent with prior practicesuch operation, (ii) the Company and its Subsidiaries shall will use all commercially reasonable efforts to maintain and protect preserve intact the FCC Licenses and Channel LeasesSeller's present business organization, to preserve substantially intact their business organizations, to keep available the services of their current officers and the Seller's employees and to preserve the current Seller's relationships of the Company and with its Subsidiaries with customers, suppliers suppliers, jobbers, distributors and other persons Persons having business relations with which the Company or Seller;
(b) use all reasonable efforts to maintain the Transferred Assets in a state of repair, order and condition consistent with its Subsidiaries has significant business relationsusual past practice;
(c) maintain the Seller's books of account and records relating to the Business in the usual, regular and ordinary manner, in accordance with the Seller's usual accounting practices applied on a consistent basis;
(iiid) the Company will comply in all material respects with all applicable Laws statutes, laws, orders and regulations wherever its business is conductedapplicable to the Seller and to the Business;
(e) not sell, includingassign, without limitationtransfer, lease or otherwise dispose of any of the timely filing Transferred Assets except for dispositions of Inventories for value in the usual and ordinary course of business;
(f) preserve and maintain all reportsrights that the Seller now enjoys in and to the Proprietary Rights and not sell, forms assign, transfer, lease or otherwise dispose of any Proprietary Rights other documents with than to the FCC and with the SEC required Buyer pursuant to the Securities Act or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date terms of this Agreement;
(g) not mortgage, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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; pledge or (vi) take any action that would, or could reasonably be expected to, result otherwise create a security interest in any of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company Transferred Assets or permit there to be created or exist 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) 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 Liens thereon (other than loans Permitted Liens) that would not be released upon the transfer of the Transferred Assets to the Buyer pursuant to this Agreement;
(h) not enter into any contract, commitment or advances less than $50,000 made lease in relation to the Business or the Transferred Assets that is out of the ordinary course of business consistent business;
(i) not amend or modify any of the Entitlements;
(j) not consent to the termination of any of the Entitlements or waive any of the Seller's rights with past practice); respect thereto;
(ivk) merge not permit any insurance policy naming the Seller as a beneficiary or consolidate a loss payee relating to the Business or the Transferred Assets to be canceled or terminated or any of the coverage thereunder to lapse unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and effect;
(l) pay when due all accounts payable, all payments required by any of the Entitlements and all Taxes other entity than Taxes that are being contested in any transaction, or sell any business or assets good faith and for which adequate reserves against the Transferred Assets exist and which would not result in a single transaction Lien being imposed on any of the Transferred Assets; and
(m) promptly notify the Buyer in writing if the Seller or series any of transactions in which the aggregate consideration is $100,000 or greater; (v) change its accounting policies except as required by GAAP; (vi) make Shareholders becomes aware of any change in employment terms for any of its directors that shall have occurred or officers; that shall have been threatened (vii) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors development that shall have occurred 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 that shall have been threatened involving a prospective change) in the ordinary course of business consistent with past practice Business or as expressly contemplated by this Agreement the Transferred Assets that would reasonably be expected to have a material or consented to in writing by Parent; (viii) make any change to adverse effect on the Company Benefit Plans; (ix) enter into any leasing Business or licensing agreements, take-or-pay arrangements the Transferred Assets whether or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases not occurring in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Weatherford International Inc /New/)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants Sellers shall conduct their business and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) cause to be conducted the business of Vapor Zone Franchising in 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 Ordinary Course of business and in a manner Business consistent with prior practice, (ii) the Company past practice 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 the Companies’ present employees and salespersons and best efforts to preserve the current goodwill, reputation and present relationships of the Company and its Subsidiaries Companies with suppliers, customers, suppliers licensors and other persons others having business relations with which the Company Companies. Without limiting the generality of the foregoing, except as set forth on Schedule 4.1 or its Subsidiaries has significant business relationsas otherwise consented to in writing by Buyer, from the date hereof through the Closing, the Companies, and Owners shall cause the Companies to (iii) and the Company will Owners with respect to Section 4.1.11 shall):
4.1.1 maintain their books and records in accordance with good business practice;
4.1.2 pay expenses and payables, continue to make and commit to make capital expenditures, xxxx customers, collect receivables, purchase inventory and replace inoperable, worn out or obsolete assets with assets of comparable quality, in each case in the Ordinary Course of Business;
4.1.3 comply in all material respects with all Laws applicable Laws to the Companies and regulations wherever its to the conduct of their respective business is conductedand perform in all material respects all their respective obligations without any material default;
4.1.4 not (i) increase the base compensation of, includingor enter into any new bonus or incentive agreement or arrangement with, without limitationany of their employees, the timely filing of all reports(ii) pay or agree to pay any additional pension, forms retirement allowance or other documents employee benefit under any Employee Plan to any such employee, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.
(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 toexisting employees, (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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 or otherwise acquire any shares of its capital stock; (iv) issueamend or enter into a new Employee Plan (except as required by law) or amend or enter into a new collective bargaining agreement, deliver (v) make or sellagree to make any bonus or profit sharing payments to any employee or (vi) implement any employee layoffs that could implicate the WARN Act;
4.1.5 maintain the Real Property, or authorize or propose including all of the issuanceFacilities thereon, 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 in materially the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding same condition as of the date of this Agreement, (y) exercise ordinary wear and tear excepted, and shall not demolish or remove any of warrants and (z) conversion the existing Facilities, or erect new improvements on the Real Property or any portion thereof; no Company will cause or permit any of Convertible Preferred Stock; (v) willfully the Real Property Leases to be amended, modified, extended, renewed or terminated, nor shall any Company enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property;
4.1.6 not undertake any action or fail to take any action that could be reasonably expected to result in the loss, lapse or abandonment of any material right to material Intellectual Property;
4.1.7 not settle or compromise any litigation (whether or not commenced prior to the date of this Agreement);
4.1.8 not (i) enter into any agreement or transaction that if entered into prior to the date hereof would make the Company's representations and warranties be required to be set forth in Article III not true and correct in all material respects; on Schedule 2.8 attached hereto, including, without limitation, any transaction involving any merger, consolidation, joint venture, partial or complete liquidation or dissolution, reorganization, recapitalization, restructuring, or a purchase, sale, lease, license, assignment, transfer or other acquisition or disposition of any assets or capital stock, or (viii) amend or modify, renew or terminate any agreement set forth on Schedule 2.19 attached hereto;
4.1.9 not undertake any action or fail to take any action that wouldif taken or failed to be taken prior to the date hereof would be required, or could have reasonably resulted in an event that would be expected torequired, result to be set forth on Schedule 2.8 attached hereto;
4.1.10 maintain the Acquired Assets in any a commercially reasonable manner and in the Ordinary Course of Business;
4.1.11 comply with the provisions of the conditions set forth in Article VI Confidentiality Agreement; and
4.1.12 not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 toagree, or guaranties of indebtedness owing tocommit to agree, 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) 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 action not permitted to be taken pursuant to this Section 5.14.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending Each member of the Merger. ------------------------------------------
(a) The Company ADC Group hereby jointly and severally covenants and agrees that between to Buyers that, from the date of this Agreement hereof to the Closing, the ADC Group will conduct and use the Effective TimeBCD Business, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only inPurchased Assets, and the Company and its Subsidiaries shall not take any action except in, Assumed Liabilities only in the ordinary course of business and in a manner consistent with prior practicepast practice over the past three years, (ii) except where the Company failure to so conduct the business would not have a Material Adverse Effect. Without limiting the generality of the foregoing, each member of the ADC Group hereby jointly and severally covenants to Buyers that from the date hereof to the Closing, solely insofar as the BCD Business, the Assumed Liabilities, and the Purchased Assets are concerned, each member of the ADC Group will use its Subsidiaries shall use all commercially reasonable efforts to maintain (provided however, the ADC Group shall not be deemed in breach of these covenants if the failure to perform these covenants would not have a Material Adverse Effect):
(a) preserve the business and protect sales organization of each member of the FCC Licenses and Channel LeasesADC Group intact, to preserve substantially intact their business organizations, to keep available the services of their current the present officers and employees and to preserve the current relationships of each member of the Company ADC Group and its Subsidiaries preserve intact their relationship and goodwill with respective suppliers, customers, suppliers employees, creditors and others having business or other persons dealings with which the Company BCD Business;
(b) maintain their respective books of account and records in its usual, regular and ordinary manner, consistent with its past practice;
(c) maintain all Purchased BCD Intellectual Property, Licensed BCD Intellectual Property and material Assigned Third Party BCD Intellectual Property in the same standing as exists on the date hereof and continue the prosecution of all applications therefore;
(d) timely perform and comply with, in all material respects, the provisions of all Contracts, commitments or other obligations relating to or affecting the Purchased Assets or the BCD Business;
(e) maintain and keep in all material respects the Purchased Assets in at least as good condition and repair, ordinary wear and tear excepted, as the condition and repair of the Purchased Assets as of the date hereof;
(f) pay when due all Taxes imposed on it or its Subsidiaries has significant business relationsincome, profit or assets or otherwise required to be paid by it, and pay when due any liability or charge which, if unpaid, might become a lien or charge upon any of the Purchased Assets, except to the extent any such Tax, liability or charge is being contested in good faith through appropriate proceedings;
(iiig) maintain in full force and effect and comply with, in all material respects, all Governmental Permits, certificates, licenses, approvals and authorizations required under all laws in connection with the Company will BCD Business, and comply in all material respects with all applicable Laws laws, rules 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 applicable to the Securities Act or the Exchange Act.BCD Business;
(bh) The Company covenants and agrees that between maintain the date current management of this Agreement and the Effective TimeBCD Business, except for the Company shall not, nor shall the Company permit any of its Subsidiaries to, Business Employees listed on Schedule 5.7(h);
(i) declare provide access to Lynn Dugle and John Caezza on a xxxxxxx xasis xx xxxxxx xn operational matters of materiality and the general status of ongoing operations to Buyers;
(j) not enter into or amend any employment (excluding any changes to salaries of less than five percent), severance, special pay arrangement with respect to termination of employment or other similar arrangements or agreements with any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stockBusiness Employees, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock Business Employees listed on Schedule 5.7(h);
(k) not increase or decrease the aggregate number of the Business Employees and consultants by more than 5% without the prior permission of the Buyers, except as set forth on Schedule 5.7(h);
(zl) maintain with respect adequately capitalized insurance companies insurance coverage for its assets and its businesses in such amounts and against such risks and losses as are consistent with past practice;
(m) not enter into any agreement with a supplier providing for delivery to the preferred stock ADC Group of Speedchoice materials or Inventory in amounts in excess of Detroitthose which the ADC Group, Inc.using reasonable business judgment, reasonably project to be used or sold during the next calendar quarter; and
(iin) splitduly comply in all material respect with all applicable laws, combine regulations and orders, and shall not take 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 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 omit 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 cause a default under or material respects; breach of any Contract, commitment or (vi) take any action that would, or could reasonably be expected to, result in any obligation of the conditions set forth in Article VI not being satisfiedADC Group.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions, (w) as set forth in Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement and or the Effective Timeother Transaction Documents, unless Parent (y) as required by Applicable Law or (z) with Buyer’s written consent, Seller shall otherwise agree in writing, (i) conduct the Purchased Subsidiaries’ 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, in the ordinary course of business and in a manner consistent with prior practicepast practice in all material respects, and (ii) the Company and use its Subsidiaries shall use all commercially reasonable best efforts to (A) preserve intact the Purchased Subsidiaries’ business, operations, organization, goodwill and reputation, (B) maintain the good will of the Purchased Subsidiaries’ customers, suppliers, lenders and protect other Persons to whom the FCC Licenses and Channel LeasesPurchased Subsidiaries sells goods or provides services, to preserve substantially intact their business organizations, to (C) keep available the services of their current officers and key 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 significant business relationsBusiness, and (iiiD) maintain substantially the Company will comply same levels of coverage of insurance as provided on the date hereof. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions, (w) as set forth in all Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement, (y) as required by Applicable Law or (z) with Buyer’s written consent, Seller shall cause the Purchased Subsidiaries not to:
(a) amend in any material respects with all applicable Laws and regulations wherever its business is conductedrespect the articles of incorporation, including, without limitation, the timely filing of all reports, forms bylaws or other similar organizational documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.of any Purchased Subsidiary;
(b) The Company covenants and agrees that between the date of this Agreement and the Effective Timeauthorize, the Company shall notissue, nor shall the Company permit any of its Subsidiaries to, (i) declare sell or pay any dividends on or make other distributions (whether in cash, stock or property) in respect otherwise dispose of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary equity securities of the Company to the Company Purchased Subsidiaries, or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock the equity securities of the Purchased Subsidiaries or issue or authorize or propose the issuance of any other securities in respect ofredeem, in lieu of or in substitution for shares of its capital stock; (iii) repurchase purchase, repurchase, retire or otherwise acquire any shares of its capital stock; (iv) issue, deliver or selloutstanding equity securities, or authorize or propose the issuancegrant any options, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stockwarrants, or rights with respect to any rightsequity securities in the Purchased Subsidiaries’ capital or bonds, warrants debentures, notes or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other corporate security other than with respect to transactions between the issuance of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.Purchased Subsidiaries;
(c) The Company covenants and agrees that between cease to operate the Purchased Subsidiaries’ properties (either permanently or temporarily other than scheduled shut downs for routine maintenance) or cease to carry on a material part of the Business as operated or carried on immediately before the date hereof;
(d) effect any dissolution, winding-up, liquidation or termination of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit Purchased Subsidiaries;
(e) acquire a material amount of assets from any of its Subsidiaries to, other Person except (i) amend its certificate of incorporation (including any certificate of designations attached thereto) pursuant to existing contracts or bylaws commitments or other equivalent organizational documents; (ii) 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 otherwise in the ordinary course of business consistent with past practice); ;
(ivf) merge acquire any material business or consolidate with Person, by merger, amalgamation or consolidation, purchase or sale of substantial assets or equity interests, or by any other entity manner;
(g) sell, lease, license or otherwise dispose of any material assets of the Purchased Subsidiaries except (i) pursuant to existing contracts or commitments, (ii) cash dividends or other cash distributions to Seller or its Affiliates or (iii) otherwise in the ordinary course of business consistent with past practice;
(h) transfer to any transactionperson any rights to the Registered Intellectual Property Rights or any other material Intellectual Property Rights owned by the Purchased Subsidiaries, except in connection with sales of the Purchased Subsidiaries’ products or services in the ordinary course of business;
(i) create or otherwise incur any Lien on the material assets of the Purchased Subsidiaries, other than Permitted Liens;
(j) incur any capital expenditures, except for (i) those contemplated by the capital expenditure budget attached as Section 5.05 of the Disclosure Schedule, and (ii) unbudgeted capital expenditures not to exceed $500,000 individually or $1,000,000 in the aggregate;
(k) issue, create, assume, guarantee or incur any additional indebtedness for borrowed money in an aggregate principal amount exceeding $500,000 individually or $1,000,000 in the aggregate (net of any amounts of indebtedness discharged during such period), other than (x) in the ordinary course of business, (y) that will be settled or repaid in full prior at or to Closing or (z) solely between or among Purchased Subsidiaries;
(l) enter into any arrangement pursuant to which any Purchased Subsidiary shall assume, guarantee or otherwise become liable with respect to the liabilities (other than indebtedness for borrowed money, which is the subject of Section 5.01(k)) of any Person (other than any Purchased Subsidiaries), other than (x) in the ordinary course of business or (y) that will be settled or repaid in full prior at or to Closing;
(m) other than in connection with actions permitted by Section 5.01(j), make any material loans, advances or capital contributions to, or sell investments in, any other Person, other than (i) in the ordinary course of business consistent with past practice, (ii) to any other Purchased Subsidiary or assets (iii) amounts that will be repaid in a single transaction full at or series prior to the Closing;
(n) waive or cancel any material claim, account receivable, trade account or right outside the ordinary course of transactions in which the aggregate consideration is $100,000 or greater; business;
(vo) change its accounting policies except as required by GAAP; Applicable Law, amend or modify in any material respect or terminate any Material Contract or Real Property Lease;
(vip) enter into any contract that would have been a Material Contract had it been entered into prior to the date hereof except, solely with respect to Material Contracts relating to the purchase of raw materials that have a term of less than one year, in the ordinary course of business consistent with past practice;
(q) settle or offer to settle, any material Action involving the Purchased Subsidiaries, except where the amount paid in settlement or compromise does not exceed (i) the amount of any reserves reflected on the Balance Sheet in respect of such Action or (ii) the aggregate coverage provided for under any insurance policy in respect of such Action, in either case, so long as such settlement does not impose any non-monetary terms and conditions on the Purchased Subsidiaries after the Closing;
(r) make any material change in employment terms any method of financial accounting, except for any such change required by reason of its directors a concurrent change in GAAP or officers; other Applicable Law;
(viis) alter, amend materially increase the compensation or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates benefits of the Company or its Subsidiaries, Business Employees 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 required by this Agreement Applicable Law or consented to the terms of any Benefit Plan or collective bargaining or other labor agreement;
(t) enter into, adopt, amend, or terminate any employment agreement, or terminate or hire any Key Employee, or other Business Employee above the grade of director or engage in writing by Parent; (viii) make any change a reduction in force with respect to the Company Benefit Plans; Business Employees;
(ixu) enter into into, adopt, amend or terminate any leasing Purchased Subsidiary Benefit Plan or licensing agreementsany Benefit Plan, take-or-pay arrangements except in each case as would not reasonably be expected to result in a liability that is material to the Purchased Subsidiaries taken as a whole;
(v) enter into, materially amend, or other affiliationsterminate any collective bargaining agreement, alignments collective labor agreement or similar agreements with respect to the FCC LicensesBusiness Employees; or
(w) agree or commit to do, providedwhether or not in writing, 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 foregoing. For the avoidance of doubt, nothing in this Section 5.1.
Section 5.01 shall restrict Seller or any of its Subsidiaries, in any respect, from taking any action to (di) The Company Disclosure Letter sets forth cause each Purchased Subsidiary to dividend, distribute or otherwise pay to Seller or any of its Affiliates any or all of the projected operating expenses cash and cash equivalents of such Purchased Subsidiary; (ii) remove, or cause any Subsidiary to remove and pay to Seller or any of its Affiliates any cash and cash equivalents held in any bank account of any Purchased Subsidiary, (iii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any Retained Subsidiary, on the other hand, and make capital expenditures increases or decreases in connection therewith, (iv) in connection with any of the foregoing clauses (i), (ii) or (iii), cause any Purchased Subsidiary to incur indebtedness for Company borrowed money from another Purchased Subsidiary and its Subsidiaries on a consolidated basis from (v) otherwise comply with or give effect to the date provisions of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the ProjectionsAgreement.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
Except: (a) The Company covenants and agrees that between the date of this Agreement and the Effective Timeas set forth on Schedule 7.1(a), unless Parent shall otherwise agree 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 significant business relations, and (iii) 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.
(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 toas required by Legal Requirement, (ic) declare or pay any dividends on or make other distributions as required (whether in cash, stock or property) in respect including by virtue of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company being an express condition to the Company Closing) or another wholly owned Subsidiary of explicitly permitted by the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date terms of this Agreement, (yd) exercise any action permitted in Schedule 1.1(c) or (e) with the prior written consent of warrants the Purchaser (such consent not to be unreasonably withheld or delayed), from and after the date hereof until the Closing, the Seller Parties shall (zand shall cause their respective Subsidiaries, including the Partnership Companies, to) conversion operate the Business to the extent pertaining to the Book in the Ordinary Course of Convertible Preferred Stock; Business, taking into account the fact that the trading books and businesses of the Partnership and its Subsidiaries other than the Business are part of a sale of businesses process. Notwithstanding the foregoing, prior to the Closing the Seller Parties shall not (and shall cause their respective Subsidiaries not to), except (i) in respect of a Counterparty Credit Risk Trade, (ii) as required by Legal Requirement, (iii) as permitted by Schedule 1.1(c), (iv) any De Minimis Action or Non-Credit Related Amendment, (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; as contemplated by Section 7.18, or (vi) take solely in respect of any action Structured Transaction, to the extent that wouldthe Seller Party that is a party thereto determines in good faith it is necessary or appropriate in connection with the management of its credit risk (a “Structured Risk Reducing Trade”), sell, transfer, amend, modify, extend, renegotiate or could reasonably be expected toterminate any Exchange Transaction, result in any OTC Transaction or Structured Transaction without the express prior consent of the conditions set forth Purchaser (which consent may be withheld in Article VI not being satisfied.
the sole discretion of the Purchaser); provided, that such Counterparty Credit Risk Trade or Structured Risk Reducing Trade shall, in each case, be deemed an Excluded Asset hereunder and its removal from the Book shall be reflected in the Supplemental Flat Files unless (ca) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) such Counterparty Credit Risk Trade or bylaws or other equivalent organizational documents; (ii) 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) Structured Risk Reducing Trade is an Interim Book Trade or (Bb) indebtedness owing to, such Counterparty Credit Risk Trade 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 Structured Risk Reducing Trade is included in the ordinary course of business consistent with past practice); (iv) 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 Book pursuant 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 5.17.14.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Transfer Agreement (Royal Bank of Scotland Group PLC)
Conduct of the Business. Pending Except as otherwise permitted or provided in this Agreement and except as provided in Section 5.1 of the Merger. ------------------------------------------
Seller Disclosure Schedule, without Purchaser’s consent (a) The Company covenants and agrees that between such consent not to be unreasonably withheld or delayed), during the period from the date of this Agreement to the Closing Date, Seller shall cause the Company and its Subsidiaries to conduct business only in the Effective Timeordinary course and shall use its commercially reasonable efforts to preserve intact the present organization of the Company and its Subsidiaries, unless Parent shall otherwise agree in writing, (i) keep available the business services of the present officers of the Company and its Subsidiaries shall be conducted only inand preserve relationships with key customers, suppliers, licensors, licensees, contractors, distributors and others having business dealings with the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, from the date of this Agreement to the Closing, except as otherwise permitted or provided in this Agreement and except as provided in Section 5.1 of the Seller Disclosure Schedule, Seller shall not permit the Company or any of its Subsidiaries shall to do any of the following without Purchaser’s consent (such consent not take to be unreasonably withheld or delayed):
(a) sell, lease, encumber, transfer or dispose of any action of its assets or acquire any assets or properties having a purchase price in excess of $1,000,000, except inin the ordinary course of business;
(b) enter into any material commitment or transaction except in the ordinary course of business;
(c) incur, create or assume any indebtedness in excess of $1,000,000 in the aggregate, except in the ordinary course of business in relation to the initiation, processing and settlement of transactions, or take any action that results in an Encumbrance, other than a manner consistent with prior practicePermitted Encumbrance, being imposed on any asset of the Company or any Subsidiary;
(d) other than in the ordinary course of business, enter into, adopt, amend or terminate any Company Plan, increase the compensation or benefits of any officer, employee or consultant or pay or otherwise grant any benefit not required by any Company Plan, or enter into any contract to do any of the foregoing, except to the extent bound by applicable Law;
(i) except for hires to fill open positions at market salaries and benefits, enter into or offer to enter into or (ii) except in the Company ordinary course of business, amend, terminate or waive any right under, any employment or consulting arrangement with any Person or any group of Persons;
(f) make or commit to make any new aggregate capital expenditures and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect commitments in excess of $1,000,000 (on a consolidated basis);
(g) except in the FCC Licenses and Channel Leasesordinary course of business, 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 cancel any debts or its Subsidiaries has significant business relations, and (iii) the Company will comply in all waive any claims or rights that are 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.Company;
(bh) The Company covenants and agrees that between except in the date ordinary course of this Agreement and the Effective Timebusiness, the Company shall notenter into, nor shall the Company permit amend or terminate any contract of its Subsidiaries toa type that, (i) declare or pay any dividends on or make other distributions (whether if in cash, stock or property) in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of effect at the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.required to be disclosed pursuant to Section 3.16(a);
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 except in the ordinary course of business consistent business, enter into any new transaction or any contract with past practice); any of its officers, directors or Affiliates;
(ivj) merge or consolidate with any other entity in any transactionPerson, or sell adopt a plan of complete or partial liquidation;
(k) issue, sell, otherwise dispose of, repurchase or redeem any business capital stock or assets in a single transaction evidence of indebtedness or series other securities, or grant any options, warrants, calls, rights or commitments or any other agreements of transactions in which the aggregate consideration is $100,000 any character obligating it to issue any shares of capital stock or greater; any evidence of indebtedness or other securities;
(v) change its accounting policies except as required by GAAP; (vil) make or authorize any change in employment terms for its certificate of incorporation or bylaws;
(m) not settle any of its directors action, suit or officers; proceeding in an amount greater than $250,000, individually, or $1,000,000 in the aggregate;
(viin) altermake, amend or create cause to be made, or otherwise enter into any obligations transaction with respect to compensationto, severanceany investment, benefits, change trade or the use of control payments or any other payments to employees, directors or affiliates capital whatsoever of the Company or any of its Subsidiaries, other than with respect to alterations re-invest (not including any re-investment, directly or amendments made with respect indirectly, involving or related 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 agreementssecuritization, take-or-pay arrangements currency exchange, commodities, derivative, interest rate, swap, cap, floor or other affiliationsinterest rate risk management agreement, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases in other hedging arrangement or agreement outside the ordinary course of business), in accordance with the Company’s or any of its Subsidiaries’ investment policies, any existing short-term investment whose term has expired or is up for renewal; or or
(xo) commit take, or agree or otherwise commit to take take, any of the actions described in this Section 5.1foregoing actions.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the termination of this Agreement and the Effective TimeClosing Date, unless Parent shall otherwise agree in writing, except (i) as set forth on Schedule 5.01 of the Disclosure Schedules, (ii) if the Parent shall have consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or (iii) as otherwise contemplated by this Agreement, (1) the Company shall use its commercially reasonable efforts to conduct its business and the businesses of its Subsidiaries in the ordinary course of business, preserve the present business operations, organization and goodwill of the Company and its Subsidiaries shall be conducted only in, and preserve the present relationships with customers and suppliers of the Company and its Subsidiaries Subsidiaries; provided, that, notwithstanding the foregoing or clause (2) of this Section 5.01, the Company may use available cash to repay any Indebtedness or to make cash dividends on or prior to the Reference Time; and (2) the Company shall not, and shall not take permit any action of its Subsidiaries to:
(a) except infor issuances as may result from the exercise of Options or the conversion of Preferred Stock, upon the vesting of shares of Restricted Stock, or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell or deliver any of its or any of its Subsidiaries’ equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(b) effect any recapitalization, reclassification, equity split or like change in its capitalization;
(c) amend its Organizational Documents or any of its Subsidiaries’ organizational documents;
(d) make any redemption, purchase or acquisition of any of its or any of its Subsidiaries’ equity interests (other than with respect to the repurchase of Company Stock (including any Options or shares of Restricted Stock) from former employees of a Group Company pursuant to existing agreements or any Company Employee Benefit Plan);
(e) sell, assign, acquire or transfer any material portion of its tangible assets, except in the ordinary course of business and in a manner consistent except for sales of obsolete assets or assets with de minimis or no book value;
(f) sell, assign, transfer, abandon or exclusively license any Intellectual Property;
(g) voluntarily terminate, modify, renew or materially amend any Material Contract (or any Contract that if entered into 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 significant business relations, and (iii) 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 date hereof would constitute a Material Contract), or the Exchange Act.
enter into or adopt any Material Contract (b) The Company covenants and agrees or any Contract that between if entered into prior to the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (ihereof would constitute a Material Contract) 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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 practicerespect to those Contracts described in Sections 3.09(a)(v) and 3.09(a)(vi); ;
(iv) 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; (vih) make any change in employment terms for any of its directors or officers; (vii) altermaterial capital investment in, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any material loan to, any other payments to employeesPerson, 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 except in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement pursuant to any existing agreement or consented to in writing by Parent; budget;
(viiii) make any change to material capital expenditures or commitments therefor, except (x) in the Company Benefit Plans; ordinary course of business and (ixy) for such capital expenditures or commitments therefor that are reflected in the Company’s current budget;
(j) enter into or amend any leasing Contract with any of its managers, officers and employees outside the ordinary course of business except pursuant to any agreement set forth on the Disclosure Schedules;
(k) except in the ordinary course of business or licensing agreementsas required under the terms of any Company Employee Benefit Plan, take-or-pay arrangements (A) grant or announce any incentive awards or any increase in the salaries, bonuses or other affiliationscompensation and benefits payable by a Group Company to any of its employees, alignments officers, directors, independent contractors or agreements other service providers; (B) materially increase the benefits under any Company Employee Benefit Plan; (C) enter into or amend any employment, change in control, severance, retention or similar contract, policy or arrangement with respect to the FCC Licensesany officer, providedemployee, the independent contractor, other service provider or other agent of any Group Company may renegotiate any Channel Leases (other than offer letters providing for at-will employment without post-termination obligations with newly-hired employees who are hired in the ordinary course of business); (D) terminate or materially amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof; or (xE) hire or engage, or commit to hire or engage, any employee, independent contractor or other service provider, except for “at-will” employees with an annual salary of less than $100,000 that are hired to replace an employee who has resigned or been terminated for cause or on account of death or disability;
(l) settle any Action if (i) the amount payable by any Group Company in connection therewith would exceed $500,000 or (ii) that would involve an admission of liability or consent to non-monetary relief or would be reasonably likely to have a material and adverse effect on the post-Closing operations of the business of any Group Company;
(m) cancel any material third party indebtedness owed to any Group Company or incur, assume, guarantee or otherwise become liable in respect of any Indebtedness for borrowed money, other than the borrowings in existence on the date hereof (including any borrowings available under the Credit Agreement) and set forth in the Disclosure Schedules, provided that such Indebtedness shall be repaid in full at or prior to the Closing;
(n) grant any material discounts, credits or rebates to any customer or supplier of any Group Company other than in the ordinary course of business;
(o) (i) make, change or revoke any material election in respect of Taxes or material accounting policies of any Group Company, in each case unless required by Law or GAAP, (ii) file any amended Tax Return, (iii) settle any audit, examination, investigation, dispute or other proceeding in respect of Taxes or (iv) enter into any contract in respect of Taxes with any Governmental Entity; or
(p) agree or commit to do anything prohibited by this Section 5.01. Nothing contained in this Agreement shall give the Parent or the Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing. The Group Companies’ failure to take any of the actions described in action prohibited by this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on 5.01 shall not be a consolidated basis from the date breach of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses Section 5.01 or capital expenditures, in the aggregate, in excess any other provisions of those identified in the Projectionsthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date of this Agreement and until the Effective TimeClosing (or until the earlier termination of this Agreement in accordance with Section 6.01), unless Parent shall otherwise agree in writing, except (i) the business as required by applicable Law, (ii) as set forth on Section 4.01 of the Company Disclosure Table of Contents Schedules, (iii) as specifically required under this Agreement, (iv) in connection with the Reorganization Transactions, the Debt Tender Offer, the Foreign Sale, or, for the avoidance of doubt, the IP Monetization, in accordance with and as expressly contemplated by this Agreement and the Reorganization Agreement, (v) the entry into an agreement for or the consummation of a Permitted WholeCo Proposal in and of itself (it being understood that this clause (v) shall not be deemed to permit such Permitted WholeCo Proposal to also include another action that is otherwise expressly prohibited under clause (y) below without Purchaser’s consent (which consent shall not be unreasonably withheld, conditioned or delayed)) or (vi) as otherwise waived or consented to in writing by Purchaser (which waivers or consents shall not be unreasonably withheld, conditioned or delayed), Seller (to the extent related to the Business; provided, that the following clauses (x) and (y) shall apply to Seller (and not only to the Business Subsidiaries) to the extent unrelated to the Business only if the act or omission in question would or would reasonably be expected to be adverse (other than in a de minimis respect) to the Business Subsidiaries, the Business, Purchaser or any of its Subsidiaries (in a manner related to the Transactions including from a Tax perspective or otherwise) or the Transactions) shall be conducted only in(x) and shall cause the Business Subsidiaries to, and (a) carry on the Company and its Subsidiaries shall not take any action except in, Business in all material respects in the ordinary course of business and in a manner consistent with prior practicepast practice and (b) use reasonable best efforts to preserve intact the business organization and goodwill of the Business and the relationships of the Business Subsidiaries with their customers and suppliers and other persons having material business relationships with the Business in all material respects and (y) not, and shall cause the Business Subsidiaries not to:
(a) amend the certificate or articles of incorporation or by-laws (or other comparable organizational documents) of any of the Business Subsidiaries or take any action with respect to any such amendment;
(i) split, combine, subdivide, reclassify, purchase, redeem, repurchase or otherwise acquire, issue, sell, pledge, dispose, encumber or grant any shares of any Business Subsidiary’s capital stock or any options, warrants, convertible or exchangeable securities, stock-based performance units, equity awards denominated in shares of any Business Subsidiary’s capital stock or other rights of any kind to acquire any shares of any Business Subsidiary’s capital stock or enter into any agreement, understanding or arrangement with respect to the sale or voting of any Business Subsidiary’s capital stock, (ii) other than in a bona fide offering to the Company public where, to the Knowledge of Seller, no Third Party acquires beneficial ownership of greater than five percent (5%) of any class of capital stock of, or other equity or voting interests in, Seller, issue, sell, pledge, dispose of, encumber or grant any such securities unless any such acquiror of such securities expressly permits the consummation of the Transactions as contemplated hereunder and agrees to vote, or cause to be voted, all Seller securities directly or indirectly beneficially owned by such acquiror 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 Affiliates in favor of the Company Sale and its Subsidiaries with customersthe Reorganization Transactions at the Stockholders’ Meeting or any adjournment or any postponement thereof, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conductedissue, includinggrant, without limitationacquire, the timely filing of all reportspurchase, forms redeem or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.
(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 repurchase any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) equity-based award in respect of any Seller Common Stock, other than, in the case of its capital stock, except for dividends clause (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Companyiii), (yA) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 Seller Common Stock upon (x) the exercise of Company Seller Stock Options or the settlement of Seller RSU Awards outstanding as of the date hereof or permitted to be granted hereunder, in each case, in accordance with their terms, (B) the acquisition by Seller of shares of Seller Common Stock in connection with the surrender of such shares by holders of Seller Stock Options outstanding as of the date hereof or permitted to be granted hereunder, in each case, to Table of this AgreementContents be able to pay the exercise price of such options in accordance with the terms of such options, (yC) exercise the withholding or disposition of warrants and shares of Seller Common Stock to satisfy withholding tax obligations with respect to any Seller Equity Award outstanding as of the date hereof or permitted to be granted hereunder, in each case, in accordance with their terms, (zD) conversion upon the forfeiture of Convertible Preferred Stock; (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; outstanding Seller Equity Awards pursuant to their terms or (viE) take any action that would, the issuance or could reasonably be expected to, result in any delivery of the conditions set forth in Article VI not being satisfied.Acquisition Holdback Stock;
(c) The Company covenants and agrees that between the date of this Agreement and the Effective Timedeclare, the Company shall notset aside, nor shall the Company permit authorize, make or pay any dividend or other distribution, payable in stock, property or otherwise, with respect to any of its Subsidiaries toor the Business Subsidiaries’ capital stock, other than dividends or other distributions (i) amend its certificate of incorporation (including paid by any certificate of designations attached thereto) direct or bylaws indirect Business Subsidiary to any other Business Subsidiaries or other equivalent organizational documents; (ii) incur payable in Cash, Excluded Assets, or any indebtedness for borrowed money class of capital stock of, or guaranty other equity or voting interests in, Seller;
(d) acquire (by merger, consolidation, lease, acquisition of stock or assets or otherwise), directly or indirectly, any such indebtedness of another personassets, securities, properties, interests or businesses, other than (Ai) borrowings under existing lines supplies, equipment, bandwidth or other assets for the purpose 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 being used in the ordinary course of business consistent with past practice); , (ivii) merge pursuant to Contracts in effect on the date hereof and previously made available to Purchaser, (iii) leases or consolidate with any other entity in any transaction, subleases under which Seller (to the extent related to the Business) 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 the Business Subsidiaries is the tenant 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 subtenant entered into in the ordinary course of business consistent with past practice and involving no more than $10,000,000 in aggregate payments over the entire life of such lease or sublease, or as expressly contemplated reasonably necessary to facilitate Seller’s post-Closing operations (which leases or subleases will not be transferred to or assumed by this the Company pursuant to the Reorganization Agreement or consented otherwise to or by a Business Subsidiary and which would not, individually or in writing the aggregate, reasonably be expected to delay or prevent the satisfaction of any of the conditions set forth in Article V), (iv) acquisitions with a purchase price (including assumed indebtedness) that does not exceed $25,000,000 individually or $50,000,000 in the aggregate (provided, that for any such acquisitions below the foregoing thresholds with a purchase price (including assumed indebtedness) exceeding $10,000,000 individually, Seller shall consult in advance with Purchaser in good faith), (v) capital expenditures, which are the subject of Section 4.01(l), and (vi) assets, securities, properties, interests or businesses which are acquired by Parent; Seller as reasonably necessary to facilitate Seller’s post-Closing operations, which will not be transferred to or assumed by the Company pursuant to the Reorganization Agreement or otherwise to or by a Business Subsidiary and which would not, individually or in the aggregate, reasonably be expected to delay or prevent the satisfaction of any of the conditions set forth in Article V;
(viiie) sell, license, lease or otherwise transfer, or create or incur any Encumbrance on any of Seller’s (to the extent related to the Business) or the Business Subsidiaries’ assets, securities, properties, interests or businesses, other than (i) with respect to inventory or obsolete equipment in the ordinary course of business consistent with past practice, (ii) with a sale, license, lease or other transfer price (including any related assumed indebtedness) that does not exceed $15,000,000 individually or $30,000,000 in the aggregate (provided, that for any such transactions below the foregoing thresholds with a sale, license, lease or other transfer price (including any related assumed indebtedness) exceeding $10,000,000 individually, Seller shall consult in advance with Purchaser in good faith), (iii) pursuant to Contracts in effect on the date hereof and previously made available to Purchaser, (iv) subject to Section 4.19, with respect Table of Contents to any capital stock of Yahoo Japan Corporation, (v) Permitted Encumbrances and (vi) non-exclusive licenses or sublicenses or covenants not to xxx or assert under or with respect to any Owned Business Intellectual Property or other Business Intellectual Property granted in the ordinary course of business consistent with past practice;
(f) make any change in financial accounting methods, principles or practices, except as required by GAAP (or any interpretation thereof) or applicable Law;
(i) increase the compensation, severance or other benefits payable or to become payable to any employee, officer, director or independent contractor of Seller or any of the Company Benefit Plans; Business Subsidiaries, (ixii) pay or award, or commit to pay or award, any bonuses or incentive compensation (including any equity-based awards), (iii) adopt, enter into or establish any leasing Benefit Plan or licensing agreementsNon-U.S. Benefit Plan with, takefor or in respect of any employee of Seller or any of the Business Subsidiaries that would constitute a Benefit Plan or Non-orU.S. Benefit Plan had it been in effect as of the date of this Agreement (other than employment agreements or offer letters that do not provide sign-pay arrangements on, retention or other affiliationsone-time bonus amounts, alignments severance benefits (other than mandated by applicable Law or agreements with as provided for under a Benefit Plan or Non-U.S. Benefit Plan listed in Section 2.13(f) of the Disclosure Schedules) or change in control payments or benefits), (iv) amend, modify or terminate any Benefit Plan, Non-U.S. Benefit Plan or any employment, individual consulting, collective bargaining, bonus or other incentive compensation, health or other welfare, pension, retirement, severance, deferred compensation or other compensation or benefit plan with, for or in respect of any employee of Seller or any of the Business Subsidiaries, other than any amendments to the FCC Licenses, provided, the Company may renegotiate any Channel Leases health and welfare (excluding severance) plans in the ordinary course of business; , consistent with past practice, which do not materially increase Seller’s (to the extent related to the Business) or the Business Subsidiaries’ annual costs (xrelative to the prior year’s costs) commit in respect of such Benefit Plan, Non-U.S. Benefit Plan or agree any other plan, (v) amend the terms of any outstanding equity-based awards, (vi) other than with respect to Acquisition Holdback Stock under any acquisition agreement set forth in Section 4.09(e)(iii) of the Disclosure Schedules, take any action to accelerate the vesting or payment of, or fund, any compensation (including any equity-based awards) or benefits under, any Benefit Plan or Non-U.S. Benefit Plan, (vii) make or forgive any loans to any directors, officers or employees of Seller or any of the actions described Business Subsidiaries, or (viii) hire any employee, officer or independent contractor whose total target annual cash compensation exceeds $225,000, other than the hiring of any such Person to replace any employee, officer, or independent contractor whose employment or service has terminated in this Section 5.1.
(d) The Company Disclosure Letter sets forth the projected operating expenses ordinary course of business, consistent with past practice and capital expenditures for Company and its Subsidiaries on a consolidated basis from having total target annual cash compensation that does not exceed 110% of the date total target annual cash compensation of this Agreement through December 31the applicable employee, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses officer or capital expendituresindependent contractor whose employment or service has terminated, except, in the aggregatecase of each of the foregoing clauses, (A) as required pursuant to a Benefit Plan, Non-U.S. Benefit Plan or Contract in excess effect as of those identified the date hereof, (B) as otherwise required by applicable Law or (C) for actions for which Purchaser and the Business Subsidiaries will not be liable (which shall include, for the avoidance of doubt, actions with respect to any Seller Retained Employees or current or former non-employee directors of Seller);
(i) incur, assume, endorse, guarantee or otherwise become liable for, or modify in any material respects the Projections.terms of, any indebtedness for borrowed money, or offer, issue or sell any debt securities, warrants or other rights to acquire any debt securities of
Appears in 1 contract
Samples: Stock Purchase Agreement
Conduct of the Business. Pending The Companies shall, and the Merger. ------------------------------------------Sellers will cause each of the Companies to, observe the following provisions between the date of this Agreement to and including the Closing Date:
(a) The Each of the Companies will conduct its business only in, and neither the Companies will take any action except in, the Ordinary Course of Business and in accordance with applicable Law;
(b) No Company covenants will amend or modify any Material Contract or enter into any Contract that would have been a Material Contract if such Contract had been in effect on the date of this Agreement, except that the Companies may enter into Contracts with vendors or customers in the Ordinary Course of Business;
(c) Each Company will (i) use its reasonable best efforts to preserve its business organization and agrees goodwill, keep available the services of its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it, (ii) confer on a regular basis with representatives of Buyer to report operational matters and the general status of ongoing operations as be reasonably requested by Buyer and (iii) not take any action that would render, or which reasonably may be expected to render, any representation or warranty made by Sellers in this Agreement or any Ancillary Agreements untrue at the Closing, including any actions referred to in Section 4.9;
(d) By way of amplification and not limitation, except as expressly contemplated by any other provision of this Agreement or any Ancillary Agreement, no Company shall, between the date of this Agreement and the Effective TimeClosing Date, unless Parent shall directly or indirectly, do, or propose to do, any of the following without the prior written consent of Buyer:
(i) amend or otherwise agree in writingchange its Organizational Documents;
(ii) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of, (i) the business any shares of any of the Company and its Subsidiaries shall be conducted only inCompanies, and or any options, warrants, convertible securities or other rights of any kind to acquire any shares, or any other ownership interest (including, without limitation, any phantom interest), of any of the Company and its Subsidiaries shall not take Companies or (ii) any action assets of any of the Companies, except in, in the ordinary course Ordinary Course of business Business and in a manner consistent with prior past 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 significant business relations, and ;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its Shares or capital stock, except for the Company will comply dividends payment to be paid quarterly in all material respects accordance with all applicable Laws and regulations wherever current Companies’ policy in the Ordinary Course of Business;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its business is conductedshares, stocks or equity interests, except for the Pre-Closing BWM Reorganization;
(v) acquire (including, without limitation, the timely filing by merger, consolidation, or acquisition of all reports, forms equity or other documents with the FCC and with the SEC required pursuant to the Securities Act assets or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect ofbusiness combination) any corporation, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; (iv) issuelimited liability company, deliver or sellpartnership, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock other business organization or any securities convertible into any such shares of its capital stock, division thereof 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 material amount of shares of Company Common Stock upon (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 assets;
(vi) take any action that wouldexcept in the Ordinary Course of Business, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty issue any such indebtedness debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of another any 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 advances; or enter into or amend any contract, agreement, commitment or arrangement with respect to any other person other than loans matter set forth in this Section;
(vii) hire any additional employees or advances between consultants except in the Ordinary Course of Business or to fill vacancies, or increase the salary or the benefits provided to its managers, directors or officers, except for increases in the Ordinary Course of Business or grant any Subsidiaries severance or termination pay to, or enter into any employment, consulting, severance, change in control or golden parachute agreement with, any Key Employee of the Company Companies;
(viii) permit any material item of the Companies’ Intellectual Property Rights to lapse or between to be abandoned, invalidated, dedicated, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and Taxes required or advisable to maintain and protect its interest in each and every material item of Companies’ Intellectual Property Rights; or
(ix) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the Company and foregoing.
(e) The Companies will not change any of its Subsidiaries (other than loans or advances less than $50,000 made methods of accounting in effect on the ordinary course of business consistent with past practice); (iv) 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 date of the Company or its SubsidiariesLatest Balance Sheet, other than with respect to alterations or amendments made with respect to non-officers and non-directors changes required by the IFRS;
(f) Except in the ordinary course Ordinary Course of business consistent with past practice Business, no Company will cancel or as expressly contemplated by this Agreement terminate its current insurance policies 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 allow any of the actions described coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in this Section 5.1.full force and effect;
(dg) The Each Company Disclosure Letter sets forth will file (or cause to be filed) at its own expense, on or prior to the projected operating expenses and capital expenditures due date, all Returns for Company and its Subsidiaries all Tax periods ending on or before the Closing Date where the due date for such Returns (taking into account valid extensions of the respective due dates) falls on or before the Closing Date, prepared on a consolidated basis from consistent with the date Returns of this Agreement through December 31the Companies prepared for prior Tax periods; and
(h) No Company will (i) amend any Return, 1999 as agreed or (ii) settle or compromise any Litigation relating to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the ProjectionsTaxes.
Appears in 1 contract
Samples: Combination and Stock Purchase Agreement (DD3 Acquisition Corp.)
Conduct of the Business. Pending Seller will cause the Merger. ------------------------------------------Company to observe the following provisions to and including the Closing Date:
(a) The the Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, will conduct its business only (i) in the business Ordinary Course 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 Business and in a manner consistent accordance with prior practice, applicable Law; (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 with written consent 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 Buyer; or its Subsidiaries has significant business relations, and (iii) as otherwise required in accordance with this Agreement;
(b) 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 not amend or other documents with the FCC and with the SEC required pursuant to the Securities Act modify any Material Contract or the Exchange Act.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 enter into any Contract that would have been a Material Contract if 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 (x) the exercise of Company Options outstanding as of Contract had been in effect on the date of this Agreement, except with written consent of Buyer or in accordance with Seller’s and the Company’s obligations under this Agreement;
(yc) exercise the Company will (i) use its Reasonable Best Efforts to preserve its business organization and goodwill, keep available the services of warrants its officers, employees and consultants and maintain satisfactory relationships with vendors, customers and others having business relationships with it; (ii), subject to applicable Laws, confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations as requested by Buyer; and (ziii) conversion of Convertible Preferred Stock; (v) willfully not 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 wouldrender, or could that reasonably may be expected toto render, result any representation or warranty made by Seller in any of this Agreement untrue at the conditions set forth in Article VI not being satisfied.
(c) The Company covenants Closing Date as though then made and agrees that between as though the Closing Date had been substituted for the date of this Agreement and in such representation or warranty, including any actions referred to in Section 4.9;
(d) except with the Effective Timeconsent of Buyer or in the Ordinary Course of Business, the Company shall notwill not use extraordinary selling efforts that would have the effect of accelerating sales prior to the time reasonably expected, nor shall through offering of discounts, shipment of goods prior to anticipated shipping dates or otherwise;
(e) except with written consent of Buyer, the Company permit will not (i) make or rescind any express or deemed election or take any other discretionary position relating to Taxes, (ii) amend any Return; (iii) settle or compromise any Litigation relating to Taxes or (iv) change any of its Subsidiaries to, methods of reporting income or deductions for federal or state income Tax purposes from those employed in the preparation of the last filed federal or state income Tax Returns;
(if) amend the Company will not change any of its certificate methods of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personaccounting in effect on the Latest Balance Sheet Date, 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) 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 changes required by GAAP; and
(vig) make any change in employment terms for any except with written consent 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, providedBuyer, the Company may renegotiate any Channel Leases in the ordinary course of business; will not cancel or (x) commit terminate its current insurance policies or agree to take allow any of the actions described coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse replacement policies providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in this Section 5.1full force and effect.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date of this Agreement until the Closing (or until the earlier termination of this Agreement in accordance with Section 8.1), except as expressly required by applicable Law, as set forth on Section 4.1 of the Seller Disclosure Letter, as specifically contemplated by this Agreement, including as required to implement the Restructuring Steps Plan, as required by the Monitoring Trustee or other designated Competition/Investment Law authority or as otherwise waived or consented to in writing by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), with respect to the Business, Seller shall cause the Seller Entities and the Effective TimePurchased Entities (as applicable) to, unless Parent and shall otherwise agree in writing, use its reasonable best efforts to cause Rexam to cause the Rexam Entities to:
(a) (i) carry on the business portion 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 significant business relations, and (iii) the Company will comply Business controlled by them 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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) 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 and (ii) use its commercially reasonable efforts to maintain and preserve the relationships and goodwill of the Business with its customers, suppliers and others having material business dealings with the Business;
(b) not grant, create, assume or as expressly contemplated by this Agreement otherwise incur any Encumbrance (other than a Permitted Encumbrance on Purchased Assets that are not the Interests or consented to in writing by Parent; (viiithe Purchased Affiliate Interests) make on any change to of the Company Benefit Plans; (ix) enter into Purchased Assets or any leasing or licensing agreementsassets of any Purchased Entity, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases than in the ordinary course of business; business and other than to the extent such assets will be Excluded Assets;
(c) not sell, transfer or (x) commit dispose of any material Purchased Assets or agree to take material assets of any Purchased Entity, other than the sale of Inventory in the actions described ordinary course of business or in this Section 5.1.accordance with the Restructuring Steps Plan;
(d) The Company Disclosure Letter sets forth use commercially reasonable efforts to preserve intact the projected operating expenses goodwill and the relationships of the Business with its customers, suppliers, distributors, landlords and others having material business dealings with the Business;
(e) not amend the certificate or articles of incorporation or by-laws (or other comparable corporate charter documents) of any of the Purchased Entities or take any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any of the Purchased Entities, file a petition in bankruptcy under any provisions of bankruptcy Law on behalf of any Purchased Entity, Seller Entity or Rexam Entity or consent to the filing of any bankruptcy petition against any Purchased Entity, Seller Entity or Rexam Entity;
(f) not authorize, issue, sell, grant or otherwise dispose of any shares of capital expenditures for Company and its Subsidiaries stock of or any Option with respect to any of the Purchased Entities, or permit any Encumbrances to be imposed on any such shares;
(g) (A) not enter into any new Contract that would be a consolidated basis from Material Contract under the definition of Material Contract if entered into prior to the date of this Agreement through December 31(and that would be a Purchased Asset and Assumed Liability), 1999 as agreed to by other than the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses renewal of a Material Contract in accordance with its terms or capital expenditures, in the aggregateordinary course of business on terms that are not materially less favorable to the Business than the terms of the Material Contract being renewed; or (B) not accelerate, terminate, cancel, amend or otherwise modify any Material Contract in excess of those identified any material respect;
(h) not incur, assume or guarantee any indebtedness for borrowed money other than (i) in an amount not exceeding $50 million in the Projections.aggregate or
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement
Conduct of the Business. Pending During the Mergerperiod from the date hereof to the Closing, except as otherwise expressly provided in this Agreement, the Seller Entities shall operate the Business only in the ordinary course of business . ------------------------------------------
(a) The Company covenants Seller Entities shall use their respective reasonable best efforts to preserve intact the present organization of the Business, keep available the services of the present officers and agrees that between employees of the Business and preserve relationships with customers, suppliers, licensors, licensees, contractors, distributors and others having business dealings with the Business. Without limiting the generality of the foregoing, from the date of this Agreement and to the Effective TimeClosing, the Seller Entities shall not, without the prior written consent of Parent, to the extent related to the Business:
(a) sell, lease, encumber, transfer or dispose of any assets or rights or acquire any assets or rights which would be included in the Assets, unless Parent shall otherwise agree in writingthe ordinary course of business, or pursuant to the capital expenditure plan described in Section 4.1(a) of the Disclosure Schedule, or except for the acquisition from Metrovision of North America, Inc. of the 40% minority interest in York Hannover Partnership, a Wisconsin general partnership;
(b) engage in any sales of a product (i) with payment terms longer than terms customarily offered by each of the Seller Entities for such product, (ii) at a greater discount from listed prices than customarily offered for such product, other than pursuant to a promotion of a nature previously used in the normal course of business of each of the Company and its Subsidiaries shall be conducted only inSeller Entities for such product, and (iii) at a price which does not give effect to any previously announced general increase in the Company and its Subsidiaries shall list price for such product, (iv) with shipment terms more favorable to the customer than shipment terms customarily offered by each of the Seller Entities for such product, (v) in a quantity greater than the reasonable retail or wholesale (as the case may be) resale requirement of the particular customer or (vi) in conjunction with other benefits to the customer not take any action except in, 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 significant business relations, and (iii) 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.
(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 dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.customer;
(c) 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 collect any of its Subsidiaries to, (i) amend its certificate of incorporation (including accounts receivables or fail to pay any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personaccounts payable, other than in the ordinary course of business;
(Ad) borrowings under existing lines enter into any material commitment or transaction unless in the ordinary course of credit business;
(e) permit any Asset to suffer any Lien thereupon, other than Permitted Liens;
(f) change (or under permit to be changed) 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 accounting (other than loans with respect to inventory accounting as described in Section 2.18) or advances less than Tax procedure or practice or its financial structure or make (or permit to be made) any Tax election or settle or compromise any liability for Taxes;
(g) enter into, adopt, amend or terminate any employee benefit plan, increase in any manner the compensation or benefits of any officer or employee or pay any benefit not required by any existing employee benefit plan, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing, except to the extent bound by applicable law and except for normal merit and seniority raises and discretionary bonuses in the aggregate not to exceed $50,000 made 10,000 to any individual, granted in the ordinary course of business consistent with past practice); practices;
(ivh) merge enter into or consolidate offer to enter into any employment or consulting agreement 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 person outside the ordinary course of business consistent with past practice or as expressly contemplated business, unless terminable at will by this Agreement or consented to in writing by Parent; the employing Seller Entity;
(viiii) make any change to capital expenditures outside the Company Benefit Plans; ordinary course of business, except for those included in the capital expenditure plan described in Section 4.1(a) of the Disclosure Schedule;
(ixj) enter into into, amend or terminate any leasing or licensing agreementsmaterial contract, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases except in the ordinary course of business;
(k) enter into any transaction or any contract with any affiliate, other than transactions on arm's-length terms in the ordinary course; or
(l) authorize, or (x) commit or agree to take take, any of the actions described in this Section 5.1foregoing actions.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Conduct of the Business. Pending the Merger. ------------------------------------------
(a) The Company covenants and agrees that between From the date hereof until the earlier of the Closing and the termination of this Agreement and the Effective Timein accordance with its terms, unless Parent shall otherwise agree in writing, except (i) as otherwise expressly contemplated or permitted or required by this Agreement or the business of the Company Ancillary Agreements, (ii) as required by applicable Law, (iii) in connection with any COVID-19 Measures undertaken reasonably and its Subsidiaries shall be conducted only inwith reasonably prompt notification thereof provided to Buyer, and the Company and its Subsidiaries (iv) as set forth in Schedule 4.1 or (v) as otherwise requested or consented to in writing by Buyer, which consent shall not take any action except inbe unreasonably conditioned, withheld or delayed, the Sellers shall cause the Transferred Companies and their respective Subsidiaries to conduct the Business in all material respects in the ordinary course of business and in a manner consistent with prior practicebusiness, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to (A) preserve in all material respects the Business and the Subject Companies’ present relationships with key vendors, customers, suppliers and other Persons with whom the Business and/or any of the Subject Companies have business relationships and maintain and protect all Insurance Policies currently in place with respect to the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to Business (B) keep available the services of their current present 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 significant business relationskey employees, and (iii) the Company will comply in all material respects shall not, 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 respect to the Securities Act Business, and shall not permit the Transferred Companies or the Exchange Act.their respective Subsidiaries to:
(a) amend or modify any of their Organizational Documents;
(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 dividends than (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 (x) the exercise of Company Options outstanding as of the date of this Agreement, (y) exercise of warrants and (z) conversion of Convertible Preferred Stock; (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 conditions set forth in Article VI not being satisfied.
(c) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) 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 or (y) as required by any existing Company Plan or Labor Contract, (i) enter into any employment or other similar Contract (or amend any such existing Contract) with past practicerespect to any Business Employee with annual base salary or fee in excess of $150,000, (ii) increase benefits payable under any existing severance or termination pay policies or arrangements, (iii) establish, enter into, terminate, adopt or amend any bonus, profit-sharing, thrift, pension, retirement, deferred compensation, equity or equity-based incentive or other Company Plan or, with respect to the Business Employees, any Seller Plan in a manner that would increase the Liability of any Subject Company (other than changes which generally cover employees of the Sellers and their Subsidiaries (including the Business Employees); ), (iv) merge hire, engage or consolidate with terminate (other than a termination for cause) the employment or service of 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; Business Employee (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 employeesperson who would be such if hired or engaged), 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 except 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 Licensesany non-officer Business Employee with annual base salary or fee not in excess of $150,000 or (v) increase compensation, providedbonus opportunity or other benefits payable to any Business Employee, the Company may renegotiate any Channel Leases except (i) in the ordinary course of business; business with respect to any non-officer Business Employee with annual base salary or fee not in excess of $150,000 after giving effect to such increase and (xii) commit standard merit increases consistent with past practices not to exceed 3% in the aggregate;
(c) transfer internally (including in response to a request for transfer by a Business Employee), or agree to take otherwise materially alter the duties and responsibilities of, any of the actions described Business Employee in this Section 5.1.a manner that would affect whether such Business Employee is listed as a Business Employee;
(d) The negotiate, enter into, amend or extend any Labor Contract (except (x) as required by applicable Law, or (y) in the ordinary course of business as a result of the expiration of any Labor Contract in a manner that would be not be reasonably expected to materially increase the costs of the Subject Companies);
(e) institute any reductions in force or layoffs affecting ten (10) or more employees, put ten (10) or more employees on unpaid leave or furlough, or materially reduce the hours or weekly pay of ten (10) or more employees;
(f) issue, sell, transfer, repurchase or redeem, subject to a Lien or grant options, warrants, calls or other rights to purchase or subscribe to, enter into any arrangement or Contract with respect to the issuance or sale of, or redeem or repurchase any Transferred Company Disclosure Letter sets forth Securities or any Subsidiary Securities, except, in each case, pursuant to the projected operating expenses and capital expenditures for Company and its Subsidiaries terms of awards as in effect on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the hereof under a Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.Plan;
Appears in 1 contract
Conduct of the Business. Pending The Seller covenants and agrees with the Merger. ------------------------------------------Buyer that from and after the date hereof until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Seller shall, and Weatherford shall cause the Seller to:
(a) The Company covenants and agrees that between operate the date of this Agreement Business and the Effective TimeTransferred Assets only in the usual, unless Parent shall otherwise agree in writingregular and ordinary manner with a view to maintaining the goodwill that the Seller now enjoys and, (i) to 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 extent consistent with prior practicesuch operation, (ii) the Company and its Subsidiaries shall will use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leasespreserve intact its present business organization, to preserve substantially intact their business organizations, to keep available the services of their current officers and its employees and to preserve the current relationships of the Company and its Subsidiaries relationship with its customers, suppliers suppliers, jobbers, distributors and other persons Persons having business relations with which it;
(b) use all reasonable efforts to maintain the Company or Transferred Assets in a state of repair, order and condition consistent with its Subsidiaries has significant business relationsusual practice in connection with the Business;
(c) maintain its books of account and records relating to the Business in the usual, regular and ordinary manner, in accordance with the Seller's usual accounting practices applied on a consistent basis;
(iiid) the Company will comply in all material respects with all applicable Laws statutes, laws, orders and regulations wherever its business is conductedapplicable to it and to the conduct of the Business;
(e) not sell, includingassign, without limitationtransfer, lease or otherwise dispose of any Equipment or any of the timely filing other Transferred Assets except for dispositions of Inventories for value in the ordinary course of time Business consistent with past practice;
(f) preserve and maintain all reportsrights that it now enjoys in and to the Proprietary Rights and not sell, forms assign, transfer, lease or otherwise dispose of any Proprietary Rights other documents with than to the FCC and with the SEC required Buyer pursuant to the Securities Act or the Exchange Act.terms of this Agreement;
(bg) The Company covenants and agrees other than Permitted Liens, not mortgage, pledge or otherwise create a security interest in any of the Transferred Assets or permit there to be created or exist any Liens thereon that between would not be released upon the date transfer of the Transferred Assets to the Buyer pursuant to this Agreement and Agreement;
(h) not enter into any contract, commitment or lease in relation to the Effective TimeBusiness (i) that includes terms that are inconsistent in any material respect with the Seller's prevailing pricing practices, (ii) pursuant to which the Company shall notSeller is to receive in excess of $200,000 or is required to expend in excess of $50,000, nor shall (iii) that is out of the Company permit ordinary course of the Business or (iv) that is with an Affiliate of the Seller or that would bind the Buyer under a contract or other obligation with the Seller or any of its Subsidiaries to, Affiliates;
(i) declare not permit any insurance policy naming it as a beneficiary or pay a loss payee relating to the Business or the Transferred Assets to be canceled or terminated or any dividends on of the coverage thereunder to lapse unless simultaneously with such termination or make other distributions cancellation replacement policies providing substantially the same coverage are in full force and effect;
(j) promptly notify the Buyer in writing if the Seller or Weatherford becomes aware of any change that shall have occurred in the Transferred Assets or the Business that would reasonably be expected to have a Material Adverse Effect whether or not occurring in cashthe ordinary course of the Business consistent with past practice;
(k) not create, stock incur, guarantee or property) assume any indebtedness for borrowed money in respect of any of its capital stock, except for dividends (x) by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (y) with respect to the Convertible Preferred Stock and (z) with respect to the preferred stock of Speedchoice of Detroit, Inc.; (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 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 equivalentsBusiness, other than draws not in excess of $30,000 in the issuance aggregate outstanding at any time pursuant to existing overdraft agreements relating to the operations of shares Pipeline Induction Heat Limited;
(l) not enter into, adopt or (except as may be required by law) amend or terminate any agreement, plan or other arrangement for the benefit or welfare of Company Common Stock upon any employee of the Business; not increase in any manner the compensation or fringe benefits of any employee of the Business other than merit increases planned for January 1997 in an aggregate amount not to exceed $375,000; not pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund or other arrangement as in effect on the date hereof;
(xm) not make any capital expenditure relating to the exercise Business that, individually, is in excess of Company Options outstanding as of $50,000, or that, in the aggregate with all other capital expenditures made after the date of this Agreement, is in excess of $250,000;
(yn) exercise not amend, modify, or change any existing lease, contract or agreement relating to the Business, other than in the ordinary course of warrants the Business consistent with past practice;
(o) not waive, release, grant or transfer any rights relating to the Business, other than in the ordinary course of the Business consistent with past practice;
(p) not accelerate collection of any notes or accounts receivable generated by the Business, other than in the ordinary course of the Business consistent with past practice;
(q) not delay payment of any account payable or other liability of the Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(r) not allow the levels of raw materials, work-in-process, finished goods, supplies and other materials included in the inventory of the Business to vary in any material respect from the levels customarily maintained by the Seller in the ordinary course of the Business consistent with past practice;
(zs) conversion not change any of Convertible Preferred Stock; the accounting principles or practices used by it relating to the Business, except for any change required by reason of a concurrent change in generally accepted accounting principles and notice of which is given in writing by the Seller to the Buyer;
(vt) willfully not take any action that would or might make any of the Company's representations and or warranties set forth of the Seller contained in Article III not true and correct in all material respects; this Agreement untrue or (vi) take inaccurate as of any action that would, time from the date of this Agreement to the Closing or could reasonably be expected to, would or might result in any of the conditions set forth in Article VI not this Agreement not-being satisfied.; or
(cu) 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) amend its certificate of incorporation (including any certificate of designations attached thereto) not authorize or bylaws or other equivalent organizational documents; (ii) 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 topropose, 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) 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 agree in writing by Parent; (viii) make any change or otherwise to the Company Benefit Plans; (ix) enter into any leasing or licensing agreementstake, 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 5.1SECTION 11.
(d) The Company Disclosure Letter sets forth the projected operating expenses and capital expenditures for Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 1999 as agreed to by the Company and Parent (the "Projections"). The Company agrees that it shall not incur material operating expenses or capital expenditures, in the aggregate, in excess of those identified in the Projections.
Appears in 1 contract
Samples: Asset Purchase Agreement (CRC Evans International Inc)
