Conduct of the Company's Business Pending the Effective Time. From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except (i) as required by applicable Law, (ii) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (iii) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (v) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause (v) prior to the consummation of the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent the consummation of the Combination), the Company will, and will cause each of its Subsidiaries to, (A) conduct its business in the ordinary course of business in all material respects and (B) use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with material customers, suppliers, licensors, licensees, distributors and other Third Parties. In addition to and without limiting the generality of the foregoing, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except (1) as required by applicable Law, (2) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (3) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (4) as set forth in Section 5.1 of the Company Disclosure Letter or (5) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries, including in connection with any GCI Proceeding (provided, that any action taken pursuant to this clause (5) prior to the consummation of the GCI Divestiture, shall not (I) result in any Liability (other than (x) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (II) (x) materially impair, hinder, impede or delay or (y) prohibit or prevent the consummation of the Combination):
Appears in 3 contracts
Samples: Merger Agreement (Liberty Broadband Corp), Merger Agreement (Cco Holdings LLC), Merger Agreement (Charter Communications, Inc. /Mo/)
Conduct of the Company's Business Pending the Effective Time. From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except (i) as required by applicable Law, (ii) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (iii) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (v) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause (v) prior to the consummation of the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent the consummation of the Combination), the The Company will, and will cause each of its Subsidiaries to, except as permitted, required or specifically contemplated by this Agreement or by Schedule 6.4, required by any change in applicable law or consented to or approved in writing by Parent (Awhich consent or approval will not be unreasonably withheld or delayed) during the period commencing on the date hereof and ending at the Effective Time:
(a) conduct its business only in, and not take any action except in, the ordinary and usual course of its business and consistent with past practices;
(b) use commercially reasonable efforts, in the ordinary and usual course of business and consistent with past practices, to preserve intact its current business organizations, to preserve its Licenses in full force and effect, to keep available the services of its present officers and key employees, and to preserve the good will of those having business relationships with it;
(c) not (i) make any change or amendments in its charter, bylaws or partnership agreement or other governing instrument or document (as the case may be); (ii) authorize for issuance, issue, grant, sell, deliver, dispose of, pledge or otherwise encumber any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock or other equity or voting interests, or any rights, options, warrants, calls, commitments or other agreements of any character to purchase or acquire any shares of its capital stock or other equity or voting interests, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock or other equity or voting interests, other than (A) shares of Company Common Stock issued upon exercise of Company Options, Company Warrants or other rights outstanding as of the date hereof under Company Plans or the Warrant Agreement or otherwise disclosed pursuant to this Agreement, in accordance with the terms thereof or (B) shares of Company Common Stock issued upon conversion of shares of Company Series A Preferred Stock or Company Series D Preferred Stock outstanding on the date hereof, each in accordance with the terms of the Company Charter as in effect on the date hereof; (iii) split, combine, subdivide or reclassify the outstanding shares of its capital stock or other equity or voting interests, or declare, set aside for payment or pay any dividend (except for any dividend payable on the Company Preferred Stock), or make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or other equity or voting interests, or otherwise make any payments to stockholders or owners of equity or voting interests in their capacity as such (other than dividends or distributions paid by any Wholly-Owned Subsidiary of the Company to the Company or another Wholly-Owned Subsidiary); (iv) except for conversion of shares of Company Series A Preferred Stock and Company Series D Preferred Stock outstanding on the date hereof into shares of Company Common Stock, each in accordance with the terms of the Company Charter as in effect on the date hereof, redeem, purchase or otherwise acquire, directly or indirectly, any outstanding shares of capital stock or other securities or equity or voting interests of the Company or any Subsidiary of the Company; (v) make any other changes in its capital or ownership structure; (vi) sell or xxxxx x Xxxx or Restriction with respect to any stock, equity or partnership interest owned by it in any Subsidiary of the Company; or (vii) enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to any of the foregoing;
(d) not (i) modify or change in any material respect any material License or other material Contract, other than in the ordinary course of business; (ii) enter into any new employment, consulting, agency or commission agreement, make any amendment or modification to any existing such agreement or grant any increases in compensation, (A) in each case other than in the ordinary course of business and consistent with past practice and with or granted to Persons who are not officers or directors of the Company or any Subsidiary of the Company and which do not, in all material respects the aggregate, materially increase the compensation or benefit expense of the Company or any Subsidiary of the Company or any Company Equity Affiliate and (B) use other than the regular annual salary increase granted in the ordinary course of business and consistent with past practice to officers of the Company or its commercially reasonable efforts Subsidiaries who are not directors or executive officers of the Company; (iii) establish, amend or modify any Company Plan or any other employee benefit plan, except in the ordinary course of business, consistent with past practice and to preserve intact the extent not material and except to the extent required by any applicable law or the existing terms of such Company Plan or by the provisions of this Agreement; (iv) pay, discharge or satisfy claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Filings, or incurred in the ordinary course of business and consistent with past practice; (v) cancel any debts or waive any claims or rights, except in the ordinary course of business and consistent with past practice; (vi) make any capital expenditures which individually or in the aggregate are in excess of the amount provided for capital expenditures in the most recent capital budget for the Company and its Subsidiaries approved by the Company Board prior to December 31, 2002 (the "2003 capital budget"); (vii) accelerate the payment of, or otherwise prepay, any existing outstanding Indebtedness; (viii) other than the normal cash management practices of the Company and its Subsidiaries conducted in the ordinary and usual course of their business organization and goodwill and relationships consistent with material customerspast practice, suppliersmake any advance or loan to or engage in any transaction with any director, licensorsofficer, licenseespartner or Affiliate not required by the terms of an existing Contract; or (ix) enter into or assume any contract, distributors and other Third Parties. In addition agreement, obligation, commitment or arrangement with respect to and without limiting the generality any of the foregoing;
(e) not (i) incur (which will not be deemed to include entering into credit agreements, from lines of credit or similar arrangements until borrowings are made under such arrangements) any material amount of Indebtedness for borrowed money or guarantee any such Indebtedness; (ii) issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of others other than in the ordinary course of business consistent with past practice; (iii) provide any security for outstanding Indebtedness that was previously unsecured; (iv) increase any security for outstanding secured Indebtedness; or (v) grant any Liens or Restrictions on any of the assets of Company or its Subsidiaries; provided, however, that the foregoing will not prohibit (A) any guarantees in effect on the date of this Agreement until that are referred to in the earlier Company SEC Filings or in Schedule 6.4(e) or that are required to be given under existing agreements referred to in the Company SEC Filings, (B) the incurrence or guarantee of the Effective Time Indebtedness set forth on Schedule 6.4(e), and (C) any renewal, extension, amendment or refinancing of existing Indebtedness (provided there is no increase in the termination interest rate or the principal amount of this Agreement such Indebtedness);
(f) not acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in accordance with Section 7.1or a substantial portion of the assets of, except (1) as required or by applicable Law, (2) as expressly required or expressly permitted by this Agreementany other manner, any business or any corporation, partnership, association or other Transaction Document business organization or division thereof or otherwise acquire or agree to otherwise acquire any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries taken as expressly required by any Company Governance Instrument in effect as of the date of this Agreementa whole;
(g) not sell, lease or encumber or otherwise voluntarily dispose of, or any action agree to sell, lease, encumber or omission in connection with the GCI Divestiture in accordance with this Agreementotherwise dispose of, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (3) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (4) as set forth in Section 5.1 of the Company Disclosure Letter or (5) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiariesassets that are material, including in connection with any GCI Proceeding (provided, that any action taken pursuant to this clause (5) prior to the consummation of the GCI Divestiture, shall not (I) result in any Liability (other than (x) any Tax Liability resulting from individually or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis Liabilities or reasonable feesaggregate, cost and expenses of advisors and legal counsel) for which to the Company and its Subsidiaries taken as a whole;
(h) not (i) make, revoke or amend any Tax election, (ii) make any material change in any accounting, financial reporting or Tax practice or policy, (iii) execute any waiver of restrictions on assessment or collection of any Tax, (iv) enter into or amend any agreement or settlement with any Tax authority, (v) change the NonCompany's auditors or (vi) permit any insurance policy naming it as a beneficiary or loss-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected payable payee to be held directly cancelled or indirectly liable or terminated, except, in the case of clause (IIv), in the ordinary course of business consistent with past practice; and
(i) (x) materially impair, hinder, impede or delay or (y) prohibit or prevent the consummation of the Combination):not take any action that would cause its representations and warranties contained in Section 4.1 to be untrue in any respect.
Appears in 2 contracts
Samples: Merger Agreement (Liberty Satellite & Technology Inc), Merger Agreement (On Command Corp)
Conduct of the Company's Business Pending the Effective Time. From The Company shall, and shall cause each of its subsidiaries to, except as permitted, required or specifically contemplated by this Agreement or consented to or approved in writing by Liberty alone and, in the case of clauses (c)(i), (c)(ii) and (h), Liberty and Parent (which consent or approval shall not be unreasonably withheld) during the period commencing on the date hereof and ending at the Effective Time:
(a) conduct its business only in, and not take any action except in, the ordinary and usual course of its business and consistent with past practice;
(b) use reasonable efforts, in the ordinary and usual course of its business and consistent with past practice, to preserve intact its business organization, preserve its Licenses in full force and effect, keep available the services of its present officers and key employees, and preserve the good will of those having business relationships with it (provided, however, that this provision will not preclude the Company from terminating any officer or key employee for "cause" with the prior approval of Liberty, which approval need not be in writing and shall not be unreasonably withheld or delayed);
(c) not (i) make any change or amendments in its charter, bylaws, partnership agreement or membership agreement (as the case may be); (ii) issue, grant, sell or deliver any shares of its capital stock or any of its other equity interests or securities, or any securities convertible into, or options, warrants or rights of any kind to subscribe to or acquire, any shares of its capital stock or any of its other equity interests or securities, or any phantom shares, phantom equity interests or stock or equity appreciation rights, other than issuances of Company Class A Stock upon exercise of Company Stock Options or Convertible Debentures outstanding on the date of this Agreement until the earlier of the Effective Time and the termination of disclosed pursuant to this Agreement in accordance with Section 7.1their existing terms, except and issuances of capital stock or partnership or other equity interests by a direct or indirect wholly owned subsidiary of the Company to its immediate parent; (iiii) as required by applicable Lawsplit, combine or reclassify the outstanding shares of its capital stock or any of its other outstanding equity interests or securities or issue any capital stock or other equity interests or securities in exchange for any such shares or interests; (iiiv) as expressly required redeem, purchase or expressly permitted by this Agreementotherwise acquire, directly or indirectly, any shares of capital stock or any other Transaction Document or as expressly required by any Company Governance Instrument in effect as securities of the date Company or any subsidiary of this Agreementthe Company; (v) amend or modify any outstanding options, warrants, or rights to acquire, or securities convertible into shares of its capital stock or other equity interests or securities, or any action phantom shares, phantom equity interests or omission stock or equity appreciation rights, or amend or modify any Company Stock Plan or Convertible Debentures or adopt or authorize any other stock or equity appreciation rights, restricted stock or equity, stock or equity purchase, stock or equity bonus or similar plan, arrangement or agreement; (vi) make any other changes in connection with the GCI Divestiture its capital, partnership or membership structure; (vii) declare, set aside, pay or make any dividend or other distribution or payment (whether in accordance with this Agreementcash, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (iii) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld property or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (vsecurities) with respect to GCI Spincoits capital stock or other securities; (viii) sell or pledge any stock, GCI, equity or partnership interest owned by it in any subsidiary of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its SubsidiariesAffiliate, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause (v) prior to the consummation of the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent the consummation of the Combination), the Company will, and will cause each of its Subsidiaries to, (A) conduct its business except in the ordinary course of business in all material respects and consistent with prior practice; or (Bix) use its commercially reasonable efforts enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to preserve intact its business organization and goodwill and relationships with material customers, suppliers, licensors, licensees, distributors and other Third Parties. In addition to and without limiting the generality any of the foregoing;
(d) not (i) modify or change in any material respect any material License or Contract, other than in the ordinary course of business consistent with past practice; (ii) enter into any new employment, consulting, agency or commission agreement, make any amendment or modification to any existing such agreement or grant any increases in compensation, (x) in each case other than in the ordinary course of business consistent with past practice, and with or granted to persons who are not officers or directors of the Company or any subsidiary of the Company, and that do not, in the aggregate, materially increase the compensation or benefit expense of the Company or any subsidiary of the Company or any Affiliate, (y) other than the regular annual salary increase granted in the ordinary course of business and consistent with past practice to officers and employees of the Company or its subsidiaries and (z) other than entering into the consulting agreement with Xxxxxxxxx substantially in the form of Exhibit 7.11(ii); (iii) establish, amend or modify any Company Plan or any other employee benefit plan of any kind referred to in Section 4.12(a), except to the extent required by any applicable law or the existing terms of such Company Plan or by the provisions of this Agreement; (iv) secure any of its outstanding unsecured indebtedness, provide additional security for any of its outstanding secured indebtedness or grant, create or suffer to exist any Lien on or with respect to any property, assets or rights of the Company or any subsidiary of the Company, except for Permitted Encumbrances (provided that Liens qualifying as Permitted Encumbrances pursuant to clause (d) of the definition thereof shall not exceed $2,500,000 in the aggregate, without the prior written consent of Liberty, which consent shall not unreasonably be withheld or delayed); (v) pay, discharge or satisfy claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in its latest balance sheet included in the Company Form 10-Q or incurred since the date of such balance sheet in the ordinary course of business and consistent with past practice and scheduled repayments of indebtedness reflected on the latest balance sheet included in the Company Form 10-Q; (vi) cancel any debts or waive any claims or rights, except in the ordinary course of business and consistent with past practice; (vii) make any capital expenditures in excess of $20,000 individually or $200,000 in the aggregate from the date of this Agreement until hereof through the earlier Closing Date, other than the proposed capital expenditures set forth on Section 7.4(d)(vii) of the Effective Time Disclosure Schedule, which contains the capital budget for the Company and its subsidiaries approved by the termination of this Agreement in accordance with Section 7.1, except (1) as required by applicable Law, (2) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance Instrument Board and in effect as of September 30, 1999 (the date of this Agreement"Capital Budget"); (viii) accelerate the payment of, or otherwise prepay, any action existing outstanding indebtedness for borrowed money; (ix) other than as contemplated or omission in connection with otherwise permitted by this Agreement and other than the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (3) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (4) as set forth in Section 5.1 normal cash management practices of the Company and its subsidiaries conducted in the ordinary and usual course of their business and consistent with past practice, make any advance or loan to or engage in any transaction with any director, officer, partner or affiliate not required by the terms of an existing Contract described on Section 7.4(d)(ix) of the Disclosure Letter Schedule; or (5x) enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to GCI Spincoany of the foregoing;
(e) other than any acquisitions listed on Section 7.4(e) of the Disclosure Schedule, GCInot acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to otherwise acquire any substantial assets (it being understood that any acquisition that would constitute a capital expenditure within the meaning of the Capital Budget shall be subject to the provisions of clause (d) of this Section and not to this clause (e));
(f) not sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of their respective Subsidiariesits assets, except in the GCI Business, ordinary course of business consistent with prior practice;
(g) not incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Portfolio Company or any of its Subsidiariessubsidiaries or guarantee any debt security or obligation of any other Person, including other than in connection the ordinary course of business consistent with any GCI Proceeding past practice; and
(provided, that h) not take any action taken pursuant that would or is reasonably likely to this clause result in (5i) prior to the consummation any of the GCI Divestiture, shall not representations or warranties made in Article IV hereof being untrue on and as of the Closing Date as though made on and as of the Closing Date (Iexcept for any changes expressly permitted or contemplated by this Agreement) result in any Liability or (other than (xii) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (II) (x) materially impair, hinder, impede or delay or (y) prohibit or prevent the consummation of the Combination):conditions set forth in Section 8.1, 8.2 or 8.3 not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Todd Ao Corp), Merger Agreement (Liberty Media Corp /De/)
Conduct of the Company's Business Pending the Effective Time. From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except (i) as required by applicable Law, (ii) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any The Company Governance Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (iii) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (v) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause (v) prior to the consummation of the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent the consummation of the Combination), the Company willshall, and will shall cause each of its Subsidiaries to, except as permitted, required or specifically contemplated by this Agreement, including without limitation Sections 3.4(b), 3.4(e) and 7.5 hereof, or consented to or approved in writing by Liberty alone (Aand, with respect to the actions set forth in paragraphs (c)(i), (h)(i), (h)(ii), (h)(iii) and (i) of this Section 7.4, by Parent also) during the period commencing on the date hereof and ending at the Effective Time:
(a) conduct its business only in, and not take any action except in, the ordinary and usual course of its business and consistent with past practices;
(b) use reasonable efforts, in the ordinary and usual course of business and consistent with past practices, to preserve intact its business organization, to preserve its Licenses in full force and effect, to keep available the services of its present officers and key employees, and to preserve the good will of those having business relationships with it;
(c) not (i) make any change or amendments in its Charter, Bylaws or partnership agreement (as the case may be); (ii) issue, grant, sell or deliver any shares of its capital stock or any of its other equity interests or securities (other than Company Options granted to directors of the Company who are not employees of the Company in accordance with the Company Stock Plan, shares of Company Class B Common Stock issued upon the exercise of any Company Stock Options or securities issuable upon exercise of Rights), or any Convertible Securities (other than TruePosition Options issued in the ordinary course of TruePosition's business or securities issuable upon exercise of Rights) or any phantom shares, phantom equity interests or stock or equity appreciation rights; (iii) split, combine or reclassify the outstanding shares of its capital stock or any of its other outstanding equity interests or securities or issue any capital stock or other equity interests or securities in exchange for any such shares or interests (except for any conversions of shares of Company Class B Common Stock into an equal number of shares of Company Class A Common Stock); (iv) redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock or any other securities of the Company or any Subsidiary of the Company; (v) amend or modify any outstanding options, warrants, or rights to acquire, or securities convertible into shares of its capital stock or other equity interests or securities, or any phantom shares, phantom equity interests or stock or equity appreciation rights, or adopt or authorize any other stock or equity appreciation rights, restricted stock or equity, stock or equity purchase, stock or equity bonus or similar plan, arrangement or agreement; (vi) make any changes in its equity capital structure; (vii) declare, set aside, pay or make any dividend or other distribution or payment (whether in cash, property or securities) with respect to its capital stock or other securities, except for dividends by a Subsidiary of the Company paid ratably to its stockholders or the partners thereof, as the case may be (provided in the case of any non-wholly owned Subsidiary of the Company that the other stockholders of or partners in such Subsidiary are not officers, directors, employees or affiliates of the Company or any of its Subsidiaries); (viii) sell, transfer or otherwise dispose of, or pledge any stock, equity or partnership interest owned by it in any Subsidiary of the Company, except for dispositions permitted by Section 7.4(f) hereof; (ix) sell, transfer or otherwise dispose of any interest in any Investment Securities or the Company's interest in Teligent or create or permit to exist any Lien or Restriction thereon not listed on Section 4.1 of the Company Disclosure Schedule (other than any sale, Lien or Restriction arising from any change or transaction affecting the holders of such Investment Securities generally); or (x) enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to any of the foregoing;
(d) not (i) modify or change in any material respect any material License or other material Contract, other than in the ordinary course of business; (ii) enter into any new employment, consulting, agency or commission agreement, make any amendment or modification to any existing such agreement or grant any increases in compensation, (A) in each case other than in the ordinary course of business and consistent with past practice and with or granted to persons who are not officers or directors of the Company or any Subsidiary of the Company and which do not, in all material respects the aggregate, materially increase the compensation or benefit expense of the Company or any Subsidiary of the Company, and (B) use its commercially reasonable efforts other than the regular annual salary increase granted in the ordinary course of business and consistent with past practice to preserve intact its business organization and goodwill and relationships with material customers, suppliers, licensors, licensees, distributors and other Third Parties. In addition to and without limiting the generality employees of the foregoing, from the date of this Agreement until the earlier Company or its Subsidiaries who are not directors or executive officers of the Effective Time and the termination Company and; (iii) establish, amend or modify any employee benefit plan of this Agreement any kind referred to in accordance with Section 7.14.12(a), except (1) as required by applicable Law, (2) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly to the extent required by any Company Governance Instrument applicable law, or increase the number of TruePosition Options which may be granted under the TruePosition Stock Plan (except to the extent permitted by Section 4.3), or as described in effect as Section 7.4(d)(iii) of the date Company Disclosure Schedule; (iv) secure any of this Agreementits outstanding unsecured Indebtedness, provide additional security for any of its outstanding secured Indebtedness or grant, create or suffer to exist any Lien on or with respect to any property, assets or rights of the Company or any action Subsidiary of the Company, except in any such case for Permitted Encumbrances; (v) pay, discharge or omission satisfy claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice; (vi) cancel any Indebtedness or waive any claims or rights, except in the ordinary course of business and consistent with past practice or as described in Section 7.4(d)(vi) of the Company Disclosure Schedule; (vii) except as described in Section 7.4(d)(vii) of the Company Disclosure Schedule, make any material capital expenditures (other than capital expenditures required in connection with the GCI Divestiture in accordance with this Agreementbusiness of TruePosition); (viii) accelerate the payment of, including the evaluationor otherwise prepay, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, any existing outstanding Indebtedness (3) as consented other than Indebtedness referred to in writing clause (e) of the definition of Permitted Encumbrances) except in the ordinary course of business consistent with past practice; (ix) other than as contemplated or otherwise permitted by this Agreement and other than the normal cash management practices of the Company and its Subsidiaries conducted in the ordinary and usual course of their business and consistent with past practice, make any advance or loan to or engage in any material transaction with any director, officer, partner or Affiliate not required by the Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (4) as set forth terms of an existing Contract described in Section 5.1 4.18 of the Company Disclosure Letter Schedule; (x) guarantee or otherwise become responsible for any Indebtedness of any other Person; (xi) except as described in Section 7.4(d)(xi) of the Company Disclosure Schedule, contribute any additional capital to, or acquire any additional interest in, Portatel or any of its Affiliates; or (5xii) enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to GCI Spincoany of the foregoing;
(e) not acquire or agree to acquire by merging or consolidating with, GCIor by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to otherwise acquire any assets which are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(f) except as described on Section 7.4(f) of the Company Disclosure Schedule and other than dispositions in the ordinary course of business consistent with prior practice, not sell, lease or encumber or otherwise voluntarily dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets which are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(g) except as described in Section 7.4(g) of the Company Disclosure Schedule, not incur any Indebtedness other than amounts required to fund capital expenditures and operating losses of TruePosition and additional amounts not to exceed $2 million per month (calculated on a cumulative basis) and as may be required to pay expenses in connection with the transactions contemplated hereby;
(h) not (i) sell, transfer or otherwise dispose of any shares of Parent Common Stock (or any property, other than regular quarterly cash dividends, received after the date hereof in respect of a distribution on or otherwise in respect of any Parent Common Stock); (ii) authorize, sell or issue any securities that are or may become convertible into or exchangeable for (including upon consummation of the Merger) Parent Common Stock; (iii) enter into any agreement that would (after the Effective Time) purport to bind Parent or any of their respective Subsidiaries, its Subsidiaries (other than the GCI Business, the Portfolio Company or any of its Subsidiaries, including ); or (iv) engage in connection with any GCI Proceeding business other than a business engaged in as of the date hereof; and
(provided, that i) not take any action taken pursuant that would cause its representations and warranties contained in Section 4.1 to be untrue in any respect or, except as otherwise contemplated by this clause Agreement (5including Section 7.4(f) prior of the Company Disclosure Schedule), make any changes to the consummation corporate structure of the GCI Divestiture, shall not (I) result in any Liability (other than (x) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and its Subsidiaries (including the Non-GCI Subsidiariesstructure of the ownership by the Company of the direct and indirect interests in its Subsidiaries and of the ownership by the Company and its Subsidiaries of their respective businesses, properties and assets). Notwithstanding the foregoing, but subject to the provisions of Section 7.5 (to the extent applicable), the foregoing provisions of this Section 7.4 shall not prohibit or restrict in any way the Company from soliciting or taking other actions to pursue, or following the Effective Timeentering an agreement with respect to, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly liable or (II) (x) materially impair, hinder, impede or delay or (y) prohibit or prevent the consummation of the Combination):an Alternative Proposal.
Appears in 1 contract
Conduct of the Company's Business Pending the Effective Time. From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except (i) Except as required by applicable Law, (ii) as expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this Agreement, (iii) as consented to in writing contemplated by the Company Transaction Documents (copies of which have been provided to Parent Special Committee (which consent shall not be unreasonably conditioned, withheld or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (v) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause (v) prior to the consummation of date hereof), from the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries, or following date hereof through the Effective Time, unless Parent and its SubsidiariesLiberty Media shall otherwise agree in writing or, would or would reasonably be expected to be held directly or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent in the consummation case of the CombinationSection 7.4(c)(i), telephonically, followed by an agreement in writing:
(a) the Company willshall and shall cause its Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, and will shall, and shall cause each of its Subsidiaries to, (A) conduct its business in the ordinary course of business in all material respects and (B) use its commercially their reasonable best efforts to preserve intact its their present business organization organizations, preserve their respective Licenses, keep available the services of their present officers and employees and preserve their relationships with customers, suppliers and others having business dealings with them to the end that their goodwill and relationships with material customers, suppliers, licensors, licensees, distributors and other Third Partieson-going businesses shall be unimpaired at the Effective Time. In addition to and without Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries to, (i) maintain insurance coverages and its books and records in a manner consistent with prior practices, (ii) comply with all laws, ordinances and regulations of Governmental Entities applicable to the Company and its Subsidiaries, (iii) maintain and keep its properties and equipment in good repair, working order and condition, ordinary wear and tear excepted, and (iv) perform its obligations under all contracts and commitments to which it is a party or by which it is bound, except in each case where the failure to so maintain, comply or perform, either individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
(b) the Company shall not, nor shall it propose to, (i) sell, grant, pledge or transfer or agree to sell, grant, pledge or transfer any of its or its Subsidiaries' capital stock or other equity interests, (ii) amend any of its Organizational Documents, (iii) split, combine or reclassify its outstanding 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 the capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or (iv) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock or that of its Subsidiaries, except pursuant to (A) the exercise of rights granted to such party to repurchase shares of its capital stock from employees upon termination of employment or (B) contractual obligations arising under agreements existing on the date of this Agreement until the earlier hereof and disclosed in Section 4.3(e) of the Effective Time and Company Disclosure Schedule;
(c) the termination Company shall not, nor shall it permit any of this Agreement in accordance with Section 7.1, except (1) as required by applicable Lawits Subsidiaries to, (2i) as expressly required issue, deliver, sell or expressly permitted by this Agreementencumber or agree to issue, deliver, sell or encumber any other Transaction Document additional shares of, or as expressly required by stock or appreciation rights or rights of any Company Governance Instrument in effect as kind to acquire any shares of, its capital stock of the date of this Agreementany class, or any action options, rights or omission warrants to acquire shares of capital stock, or Convertible Securities or any phantom shares or phantom equity interests other than issuances of Company Common Stock pursuant to the exercise of warrants or stock options outstanding on the date hereof and disclosed in connection with Section 2.3(b)(i)(A) of the GCI Divestiture in accordance with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof in accordance with this AgreementCompany Disclosure Schedule, (3ii) as consented amend or modify any outstanding options, warrants, or rights to acquire, or Convertible Securities, or any phantom shares, phantom equity interests or stock or equity appreciation rights, or adopt or authorize any other stock or equity appreciation rights, restricted stock or equity, stock or equity purchase, stock or equity bonus or similar plan, arrangement or agreement; (iii) make any changes in writing by its equity capital structure, (iv) acquire, lease or agree to acquire or lease any capital assets or any other assets except capital assets or other assets the Parent Special Committee value of which, in the aggregate, does not exceed the total capital budget set forth in Section 7.4(c)(iv) of the Company Disclosure Schedule (which consent shall not be unreasonably conditioned, withheld or delayedwithout regard to the budgeted sub-categories within the capital budget), (4v) dispose or agree to dispose of any capital assets or other assets except in the ordinary course of business consistent with past practices, (vi) incur additional indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt security of any other Person, other than in the ordinary course of business consistent with past practice, (vii) secure any of its outstanding unsecured Indebtedness, provide additional security for any of its outstanding secured Indebtedness or grant, create or suffer to exist any Lien on or with respect to any property, assets or rights of the Company or any Subsidiary of the Company, except in any such case for Permitted Encumbrances, (viii) sell, lease, encumber, grant a security interest in, or otherwise dispose of any assets which are material, individually or in the aggregate, to the Company and its Subsidiaries, as a whole, other than in the ordinary course of business, (ix) incur any liability or obligation, or contribute any asset, to a Subsidiary of the Company that is material to the Company and its Subsidiaries other than in the ordinary course of business, (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, in each case in this clause (x) which are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except as set forth in Section 5.1 7.4(c)(x) of the Company Disclosure Letter Schedule, or (5xi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement with respect to GCI Spinco, GCI, or any of their respective Subsidiariesthe foregoing that is not otherwise permitted by the exceptions applicable to the foregoing;
(d) the Company shall not, the GCI Business, the Portfolio Company or nor shall it permit any of its SubsidiariesSubsidiaries to, including in connection other than to comply with applicable law, (i) adopt, enter into, terminate or amend any GCI Proceeding (providedbonus, that profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other Company Plan agreement, trust, fund or other arrangement for the benefit or welfare of any action taken pursuant to this clause (5) prior director, officer or current or former employee, except with respect to the consummation agreements described in Section 7.4(d) of the GCI DivestitureCompany Disclosure Schedule, shall (ii) increase in any manner the compensation or fringe benefits of any director, officer or employee (except for normal increases in the ordinary course of business that are consistent with past practice and that, in the aggregate, do not (I) result in any Liability (other than (x) any Tax Liability resulting from a material increase in benefits or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which compensation expense to the Company and its Subsidiaries relative to the Nonlevel in effect prior to such increase), (iii) pay any benefit not provided under any existing plan or arrangement, (iv) except for benefits that have already been earned or vested without acceleration, grant any awards or make any payments under any bonus, incentive, performance or other compensation plan or arrangement or Company Plan (including, without limitation, the grant of stock options, stock or equity appreciation rights, stock-GCI Subsidiariesbased or stock-related awards, performance units or restricted stock, or following the Effective Timeremoval of existing restrictions in any benefit plans or agreements or awards made thereunder), Parent except for (A) making of matching and annual contributions to 401(k) plans and (B) the grant of employee stock options and the issuance of Company Common Stock upon exercise thereof pursuant to subsection (c) of this Section 7.4, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Company Plan, other than in the ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the foregoing that is not otherwise permitted by the exceptions applicable to the foregoing;
(e) the Company shall not, nor shall it permit any of its Subsidiaries to, make any investments in non-investment grade securities;
(f) the Company shall not, nor shall it permit its Subsidiaries to, (i) make any change in its accounting policies or procedures except as required by GAAP or (ii) make any material Tax election, change any material Tax election already made, adopt any material Tax accounting method, change any material Tax accounting method unless required by GAAP, enter into any closing agreement, settle any Tax claim or assessment or consent to any Tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment;
(i) the Company shall not pay, discharge or satisfy claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice; (ii) cancel any Indebtedness or waive any claims or rights, except in the ordinary course of business and consistent with past practice or as described in Section 7.4(g)(ii) of the Company Disclosure Schedule; (iii) accelerate the payment of, or otherwise prepay, any existing outstanding Indebtedness except in the ordinary course of business consistent with past practice; (iv) other than as contemplated or otherwise permitted by this Agreement and other than the normal cash management practices of the Company and its SubsidiariesSubsidiaries conducted in the ordinary and usual course of their business and consistent with past practice, make any advance or loan to or engage in any material transaction with any director, officer, partner or Affiliate not required by the terms of an existing Contract described in Section 4.23 of the Company Disclosure Schedule; (v) guarantee or otherwise become responsible for any Indebtedness of any other Person; or (vi) enter into or assume any contract, agreement, obligation, commitment or arrangement with respect to any of the foregoing;
(h) the Company shall not take any action that would or would is reasonably be expected likely to be held directly result in (i) any of the representations or indirectly liable warranties made in Article IV hereof being untrue on and as of the Closing Date as though made on and as of the Closing Date (except for any changes expressly permitted or contemplated by this Agreement) or (IIii) any of the conditions set forth in Section 8.1, 8.2 or 8.3 not being satisfied; or
(xi) materially impairthe Company shall not enter into any agreement to perform any of the actions prohibited under this Section 7.4 and not otherwise permitted by the exceptions contained therein. Notwithstanding the foregoing, hinderbut subject to the provisions of Section 7.5 (to the extent applicable), impede or delay or (y) the foregoing provisions of this Section 7.4 shall not prohibit or prevent restrict in any way the consummation of the Combination):Company from soliciting or taking other actions to pursue, or entering an agreement with respect to, an Extraordinary Transaction.
Appears in 1 contract
Samples: Merger Agreement (Four Media Co)
