Conduct of the Company’s Business. The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by law, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required or permitted by this Agreement: (a) the business of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action, except in the ordinary course of business, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code; (b) the Company shall not, and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; and (c) the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date of this Agreement and (B) pursuant to other Company Plans as in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensation; (ix) change its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, to take any of the actions listed in clauses (i) through (xv) above.
Appears in 1 contract
Samples: Merger Agreement (America First Apartment Investors Inc)
Conduct of the Company’s Business. The Company covenants that Except as contemplated by this Agreement and as set forth in Schedule 4.1, during the period from the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Section 5, Seller will cause each of the Companies to conduct its business and operations in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, except as expressly provided by this Agreement and as set forth in Schedule 4.1, during the period from the date of this Agreement and continuing until to the earlier Closing Date, without the prior written consent of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent Buyer (which consent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed), and except to the extent required by law, or as disclosed in the neither Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required or permitted by this Agreementwill:
(a) create, incur, assume or guarantee any Indebtedness, other than in the ordinary course of business and consistent with past practice;
(b) issue, sell, deliver, redeem or purchase any of its equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or amend any terms of any such equity securities or agreements, in each case except for issuances of securities upon the exercise of outstanding options and redemptions or purchases pursuant to the terms of existing agreements with employees disclosed to Buyer in the schedules;
(c) materially increase the rate of compensation or benefits of, or pay or agree to pay any benefit to (including, but not limited to, severance or termination pay), present or former managers, directors, officers or employees, except as may be required by any existing Plan, agreement or arrangement disclosed to Buyer in the schedules, or to employees who are not officers in accordance with each Company’s ordinary course of business consistent with past practice;
(d) enter into, adopt, terminate or amend in a material respect any Plan, employment or severance agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the Company and date of this Agreement, except as required by applicable law;
(e) sell, lease, transfer or otherwise dispose of capital assets, real, personal or mixed, which have an aggregate book value in excess of $100,000, or mortgage or encumber any properties or assets, whether real or personal;
(f) acquire or agree to acquire by merging or consolidating with, or by purchasing the Company Subsidiaries shall be conducted only instock or a substantial portion of the assets of, and 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 acquire any assets which are material, individually or in the Company and the Company Subsidiaries shall not take aggregate, to either Company;
(g) enter into, modify or amend in any action, material respect or terminate any material contract except in the ordinary course of business, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code;
(bh) other than with respect to the Company shall notEscrow Asset, and shall not cause waive or permit release any Company Subsidiary torights of material value, do or cancel, compromise, release or assign any of the following: material indebtedness owed to it or any material claims held by it;
(i) sell, pledge, lease, dispose of cancel or encumber terminate any property material insurance policy naming it as a beneficiary or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that a loss payable payee without obtaining comparable substitute insurance coverage;
(j) change any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stockmaterial accounting or tax principles, methods or declare, set aside or pay any dividend on practices or make or change any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; andmaterial tax election;
(ck) the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised change in accordance with their respective terms as in effect on the date of this Agreement and (B) pursuant to other Company Plans as in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensation; (ix) change respect its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007end inventory, shipping operations or cut-off procedures; or or
(xvil) agree, whether in writing or otherwise, to take do any of the actions listed in clauses (i) through (xv) aboveforegoing.
Appears in 1 contract
Conduct of the Company’s Business. The Company covenants that during During the period from the date of this Agreement and continuing until the earlier of the Effective Time and Closing or the termination of this Agreement pursuant to in accordance with its terms, unless Parent shall otherwise consent in writing except (such consent not to be unreasonably withheldi) as contemplated, delayed required or conditioned)permitted by this Agreement, and except to the extent (ii) as required by lawapplicable Law, or (iii) as disclosed set forth in the Company SEC Reports or Section 6.1 of the Company Disclosure ScheduleLetter or (iv) as consented to by Parent in writing (which consent shall not be unreasonably withheld, conditioned or delayed and shall be deemed to have been given if Parent does not object in writing within ten (10) Business Days after a written request for such approval is delivered to Parent by the Company), the Company shall, and except as otherwise expressly required or permitted by this Agreement:
shall cause the Company’s Subsidiaries to, (ax) the business of the Company conduct their respective businesses and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action, except operations in the ordinary course of businessbusiness consistent with past practice (including any conduct that is reasonably related, complementary or incidental thereto and including the Company shall making of Tax payments and estimated Tax payments), (y) use commercially reasonable efforts to preserve intact its the present commercial relationships with key Persons with whom it does business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code;
(b) the Company shall notwell as relationships with employees, and shall (z) not cause take or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not omit to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company taken any action which would reasonably be expected to maintain its qualification as have a REIT, Material Adverse Effect. Subject to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; and
(c) , the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date of this Agreement and (B) pursuant to other Company Plans as in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent each of the Company’s Subsidiaries not to:
(a) authorize or effect any amendment to or change its Organizational Documents in any material respect;
(b) issue or authorize issuance of any Equity Interests (other than upon the exercise of the Company Subsidiaries’ products Options), or services in the ordinary course grant any options, warrants, or other rights to purchase or obtain any of businessits Equity Interests; (vi) terminate, amend, modify, assign, waive, release sell or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensation; (ix) change its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status otherwise dispose of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates of the CompanyEquity Interests of a Subsidiary, other than the Company Subsidiariesto an Acquired Company; or declare, set aside or pay any non-cash dividends in respect of its capital stock;
(xiiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms (A) enter into any Contract that, had it been entered into prior to the date hereof, would be a Company Contract, (B) materially amend, modify, terminate or as otherwise covered by insurance; cancel (xvx) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; existing Company Contract or (xviy) agreeany Contract that, had it been entered into prior to the date hereof, would be a Company Contract or (ii) engage in writing or otherwiseenter into any Contract that, had it been entered into prior to take any the date hereof, would have been required to be disclosed in Section 3.22 of the actions listed in clauses (i) through (xv) above.Company Disclosure Letter;
Appears in 1 contract
Samples: Merger Agreement (Kbr, Inc.)
Conduct of the Company’s Business. The Company covenants that Seller agrees that, during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by lawClosing, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required set forth in SECTION 6.1(B) OF THE DISCLOSURE SCHEDULE or permitted as contemplated by this Agreement:, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed):
(a) Seller shall cause the Company to conduct its business in all material respects in the Ordinary Course of Business; and
(b) Without limiting the generality of the Company and foregoing, Seller shall cause the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall Company: to (i) not take sell or dispose of any actionof its material properties or assets, except in the Ordinary Course of Business; (ii) maintain: (A) all of the material assets, properties, machinery and equipment owned, leased or used by the Company in their current condition, ordinary course of businesswear and tear accepted, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 (B) insurance upon all of the Code;
(b) the Company shall not, properties and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose amounts and of such kinds comparable to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; and
(c) the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date hereof; (iii) not, except in the Ordinary Course of this Agreement and Business: (A) amend, modify or terminate any Contract set forth in SECTION 4.15 OF THE DISCLOSURE SCHEDULE or (B) pursuant enter into any Contract that would have been required to other Company Plans as be disclosed in SECTION 4.15 OF THE DISCLOSURE SCHEDULE had it been in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed moneyhereof; (iv) make not enter into any loanswritten employment agreement with any employee or increase in any manner the compensation of any of the officers or other key employees of the Company, advances except for such increases as are granted in the Ordinary Course of Business in accordance with customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases) or capital contributions to, or investments in, any other person, other than as required by the Company or a whollypre-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiaryexisting commitment; (v) enter intonot adopt, renew grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially modify change or rescind any election in respect of Taxes, materially change any accounting or Tax reporting principle, method or policy in respect of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material leaseIndebtedness payable to any third party, contract, agreement including Seller or commitment any of its Affiliates; (including any contract, lease, agreement or commitment (Aviii) of a nature that would be required under the Exchange Act to be filed as an exhibit to not amend the Company’s Annual Report on Form 10-K, (B) having 's Charter or Bylaws or issue or agree to issue shares of capital stock including securities exchangeable for a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability convertible into capital stock of the Company or any Company Subsidiary to engage in any line of businessmerge, consolidate, recapitalize or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensationreorganize; (ix) change its accounting principles, practices or methods not license any Intellectual Property Rights (other than non-exclusive licenses to customers in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAPOrdinary Course of Business; (x) make or rescind not hire any election relating to Taxes employee unless such hire is contemplated by the budget for the Company reasonably determinespreviously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, after consultation customers, licensors, licensees and others having business relationships with the Parent, that such action is required by applicable law or necessary or appropriate Company and (B) to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent present business operations, organization and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates goodwill of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, to take any of the actions listed in clauses (i) through (xv) above.
Appears in 1 contract
Conduct of the Company’s Business. The Company covenants that during the period from From the date of this Agreement and continuing until hereof through the earlier to occur of the Effective Time and the termination of this Agreement pursuant to its termsand in accordance with Section 10.1, unless except as contemplated by this Agreement, as consented to by Parent shall otherwise consent in writing (such which consent will not to be unreasonably withheld, delayed or conditioneddenied), and except to the extent required by law, or as disclosed in the Company SEC Reports or Section 6.1 of on the Company Disclosure ScheduleSchedule or as set forth on Schedule 6.1, the Company shall, and shall cause the Company Subsidiaries to, operate its business in the ordinary course and substantially in accordance with past practice, use reasonable efforts to preserve intact their respective current business organizations, keep available the services of their respective current officers and employees, and maintain relationships and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons that have business relationships with the Company and the Company Subsidiaries, and will use its reasonable efforts not to take any action inconsistent with this Agreement. Without limiting the generality of the foregoing, unless consented to by Parent in writing (which consent shall not be unreasonably withheld or delayed), the Company shall not, and the Company shall cause the Company Subsidiaries not to, except as otherwise expressly required or permitted specifically contemplated by this AgreementAgreement or as set forth on Schedule 6.1:
(a) change or amend the business certificate of incorporation, bylaws or other organizational documents of the Company or any Company Subsidiary, except as otherwise required by Law;
(b) other than in the ordinary course of business and consistent with past practices, (A) enter into, or permit any of the assets owned or used by it to become bound by, any Contract that is or would constitute a Listed Contract, or (B) amend or prematurely terminate, or waive any material right or remedy under, any such Contract;
(c) enter into any Contract that is or would constitute an Affiliate Agreement or make any payment to any Related Party, other than pursuant to existing employment agreements or Company Subsidiaries shall be conducted only inBenefit Plans;
(d) sell, and the Company and the Company Subsidiaries shall not take assign, transfer, convey, lease or otherwise dispose of any actionmaterial assets or properties, except in the ordinary course of business, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Codeconsistent with past practice;
(be) (i) take any action with respect to the grant of any severance or termination pay (other than pursuant to policies or agreements of the Company shall not, and shall not cause or permit any Company Subsidiary in effect on the date hereof), except as otherwise required by Law; (ii) make any change in the key management structure of the Company or any Company Subsidiary, including, without limitation, the hiring of additional officers or the termination of existing officers; (iii) other than in the ordinary course of business consistent with past practice, pay any bonus or make any profit sharing payment, cash incentive payment or similar payment to, do or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iv) adopt, enter into or amend in any material respect any Company Benefit Plans;
(f) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the following: assets of, or otherwise acquire any material assets or business of any corporation, partnership, association or other business organization or division thereof;
(g) other than in the ordinary course of business and consistent with past practices, (i) sell, pledge, lease, dispose of or encumber lend money to any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedulePerson, (ii) amend incur or propose to amend its charter guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business consistent with past practices under the Company’s existing lines of credit), or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) splitother than in the ordinary course of business and consistent with past practices, combine grant or reclassify suffer the imposition of any shares Encumbrance on any asset of its stockthe Company or any Company Subsidiary;
(h) declare, or declareaccrue, set aside or pay any dividend on or make any other distributions (whether distribution in cash, respect of any shares of capital stock, property or otherwise) with respect to such repurchase, redeem or otherwise reacquire any shares of capital stock or other securities (except for (A) regular quarterly dividends in that the ordinary course of business, at a rate not to exceed $0.27 per share of Company may repurchase Company Common Stock; (B) a prorated dividend for the period Stock from the last record date set former employees pursuant to the foregoing clause (A) through terms of existing restricted stock purchase agreements and including may repurchase capital stock pursuant to the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses Repurchase);
(i) through (iv) above; and
(c) sell, issue, grant, or authorize the Company shall notsale, and shall not cause issuance or permit any Company Subsidiary togrant of, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets whether pursuant security, except with respect to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) issuable upon the exercise of outstanding Company Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date of this Agreement and (B) pursuant to other Company Plans as in effect on the date of this Agreement; Warrants, (ii) acquire any option, call, warrant or agree right to acquire (by merger, consolidation or acquisition of any capital stock or assets) any real propertyother security, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except any instrument convertible into or exchangeable for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create any capital stock or assume other security;
(j) take any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature action that would be required under result in a voluntary or involuntary liquidation, dissolution or winding up of the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability affairs of the Company or any Company Subsidiary;
(k) commence or settle any Action in which the Company or any Company Subsidiary seeks to engage recover in excess of $100,000;
(l) settle any line of business, or otherwise imposing material limitations on the conduct of business Action which may require a payment by the Company or any Company Subsidiary, Subsidiary in excess of $100,000;
(Dm) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish make any material contract rights Tax election or any other material rights or claims; (vii) settle or compromise any material claim, action, suit Tax Liability or proceeding pending or threatened against the Company including relating to Taxes; refund;
(viii) make any change in executive compensation; (ix) change its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xin) enter into any tax protectionagreement, sharing or indemnity agreement or arrangement; (xii) enter into otherwise become obligated, to do any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted action prohibited hereunder; or
(xivo) pay, discharge knowingly take any action (or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, knowingly fail to take any of action) which action or failure to act would cause the actions listed in clauses (i) through (xv) aboveMerger not to qualify as a Reorganization.
Appears in 1 contract
Samples: Merger Agreement (Accuride Corp)
Conduct of the Company’s Business. The Company covenants that during the period from From the date hereof to the --------------------------------- Effective Time, except with the prior written consent of this Agreement and continuing until Envirogen, the earlier of the Effective Time Company will (and the termination of this Agreement pursuant Stockholders will use their best efforts to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by law, or as disclosed in cause the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required or permitted by this Agreement:to):
(a) the carry on its business of the Company in, and the Company Subsidiaries shall be conducted only in, the usual, regular and ordinary course, consistent with past practice and in substantially the Company same manner as heretofore conducted and, to the extent consistent with such business, use its best efforts to preserve intact its present business organization, keep available the services of its present officers and employees, and preserve its relationships with customers, contractors, and others having business dealings with it to the Company Subsidiaries end that its goodwill and going business shall be unimpaired at the Effective Time;
(b) to pay and discharge all of its debts, liabilities and obligations as they become due;
(c) keep in full force and effect insurance comparable in amount and scope of coverage to insurance now carried by it;
(d) perform all of its obligations under agreements, contracts and instruments relating to or affecting its properties, assets and business;
(e) maintain its facilities and assets in the same state of repair, order and condition as they were on the date hereof, reasonable wear and tear excepted;
(f) maintain its books of account and records in the usual, regular and ordinary manner and to use best efforts to maintain in full force and effect all Permits;
(g) comply with all statutes, laws, ordinances, rules and regulations applicable to it and to the conduct of its business;
(h) promptly advise Envirogen in writing of any material adverse change in its financial condition, operations, assets, prospects or business;
(i) maintain the Company's S corporation status for federal and state income tax purposes;
(j) not take enter into, assume or amend in any actionmaterial respect any agreement, contract, purchase order or commitment of the character described in Section 3.13, except in the ordinary course of businessbusiness consistent with past practice;
(k) not take, or permit to be taken, any action that is represented and warranted in Section 3.24 not to have been taken since the date of the Interim Balance Sheet (with the exception of (A) that described in Subsection 3.24(a)(iv) and (B) the payment and distributions to the Stockholders and (C) the incurrence of Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwillDebt or Permitted Debt, to keep available the services or both, as described in Section 5.08(m) below);
(l) not increase salaries or other compensation of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code;
(b) the Company shall not, and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of directors or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except employee other than normal year-end merit increases for (A) regular quarterly dividends non-officer employees made in the ordinary course of businessthe Company's business consistent with past practice;
(m) not create, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct incur, assume, guarantee or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned otherwise become directly or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement indirectly liable with respect to any of the matters listed in clauses (i) through (iv) above; and
(c) the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date of this Agreement and (B) pursuant to other Company Plans as in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned (i) Company SubsidiaryDebt, (ii) indebtedness for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services money in the ordinary course of business; business under agreements existing on the date hereof and identified on the Disclosure Schedule pursuant to Section 3.13 and (viiii) terminate, amend, modify, assign, waive, release Permitted Debt to the extent the terms thereof are not inconsistent with the terms of the Company's indebtedness for borrowed money outstanding on the date hereof and do not provide for any premium or relinquish any material contract rights or any other material rights or claims; penalty upon payment prior to maturity thereof;
(viin) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) not make any change in executive compensationthe Company's authorized or issued capital stock; (ix) change its accounting principles, practices grant any stock option or methods in a manner that would adversely affect Parent, except as may be required other right to purchase shares of the Company's capital stock or other securities; issue or make any commitment to issue any security by the SECCompany, applicable law including any security convertible into capital stock; grant any registration rights; or GAAP; purchase, redeem, retire or make any other acquisition of any shares of its capital stock or other securities;
(xo) make not amend the certificate or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law articles of incorporation or necessary bylaws (or appropriate to preserve equivalent governing documents) of the Company’s qualification as a REIT ;
(p) not enter any contract with any Stockholder or the partnership or disregarded status any affiliate of any Company Subsidiary or otherwise agreed to by the Parent and the CompanyStockholder; and
(xiq) not enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except understanding to do or engage in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, to take any of the foregoing actions listed described in clauses paragraphs (ij) through (xv) abovep).
Appears in 1 contract
Samples: Merger Agreement (Envirogen Inc)
Conduct of the Company’s Business. The Company covenants that Seller agrees that, during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by lawClosing, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required set forth in Section 6.1(b) of the Disclosure Schedule or permitted as contemplated by this Agreement:, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed):
(a) Seller shall cause the Company to conduct its business in all material respects in the Ordinary Course of Business; and
(b) Without limiting the generality of the Company and foregoing, Seller shall cause the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall Company: to (i) not take sell or dispose of any actionof its material properties or assets, except in the Ordinary Course of Business; (ii) maintain: (A) all of the material assets, properties, machinery and equipment owned, leased or used by the Company in their current condition, ordinary course of businesswear and tear accepted, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 (B) insurance upon all of the Code;
(b) the Company shall not, properties and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose amounts and of such kinds comparable to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; and
(c) the Company shall not, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date hereof; (iii) not, except in the Ordinary Course of this Agreement and Business: (A) amend, modify or terminate any Contract set forth in Section 4.15 of the Disclosure Schedule or (B) pursuant enter into any Contract that would have been required to other Company Plans as be disclosed in Section 4.15 of the Disclosure Schedule had it been in effect on the date of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed moneyhereof; (iv) make not enter into any loanswritten employment agreement with any employee or increase in any manner the compensation of any of the officers or other key employees of the Company, advances except for such increases as are granted in the Ordinary Course of Business in accordance with customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases) or capital contributions to, or investments in, any other person, other than as required by the Company or a whollypre-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiaryexisting commitment; (v) enter intonot adopt, renew grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially modify change or rescind any election in respect of Taxes, materially change any accounting or Tax reporting principle, method or policy in respect of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material leaseIndebtedness payable to any third party, contract, agreement including Seller or commitment any of its Affiliates; (including any contract, lease, agreement or commitment (Aviii) of a nature that would be required under the Exchange Act to be filed as an exhibit to not amend the Company’s Annual Report on Form 10-K, (B) having Charter or Bylaws or issue or agree to issue shares of capital stock including securities exchangeable for a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability convertible into capital stock of the Company or any Company Subsidiary to engage in any line of businessmerge, consolidate, recapitalize or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensationreorganize; (ix) change its accounting principles, practices or methods not license any Intellectual Property Rights (other than non-exclusive licenses to customers in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAPOrdinary Course of Business; (x) make or rescind not hire any election relating to Taxes employee unless such hire is contemplated by the budget for the Company reasonably determinespreviously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, after consultation customers, licensors, licensees and others having business relationships with the Parent, that such action is required by applicable law or necessary or appropriate Company and (B) to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent present business operations, organization and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates goodwill of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, to take any of the actions listed in clauses (i) through (xv) above.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tekelec)
Conduct of the Company’s Business. The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Effective Time and Closing or the termination of this Agreement pursuant to in accordance with its termsterms (the “Pre-Closing Period”), unless Parent Purchaser shall otherwise consent in writing (provided, that, with respect to Sections 6.1(a), 6.1(b)(i), (ii), (ix)(B), (xiv), (xii), (xiv), (xvi), (xvii), (xviii), (xxiii), (xxiv) and (xxv) (but with respect to (xxv), only with respect to those actions listed in the foregoing clauses) such consent shall not to be unreasonably withheld, delayed or conditioned), and except to the extent required by law, Law or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required or permitted by this Agreement:
(a) the business of the Company and the Company Subsidiaries shall be conducted only inbe, and the Company and shall cause the business of the Company Subsidiaries to be, conducted only in the ordinary course of business, the Company shall not, and it shall cause the Company Subsidiaries not to, take any action, action except in the ordinary course of business, and the Company shall use use, and shall cause the Company Subsidiaries to use, commercially reasonable efforts to preserve intact in all material respects its and their present business organization organization, keep the relationships of the Company and goodwillthe Company Subsidiaries with clients, to customers, contract manufacturers, suppliers, licensors, licensees, distributors and others having business dealings with the Company and the Company Subsidiaries intact in all material respects and its and their goodwill and ongoing business unimpaired in all material respects, keep available the services of its the officers and key employees and to maintain its qualification as a REIT within the meaning of listed in Section 856 6.1(a) of the Code;Disclosure Schedule and maintain in effect all material Permits and Healthcare Regulatory Authorizations; and
(b) the Company shall not, and shall cause the Company Subsidiaries not cause or permit any Company Subsidiary to, do any of the following: :
(i) modify the terms of, discount, setoff or accelerate the collection of any accounts receivable, except in a manner consistent with the past practices of the Company and the Company Subsidiaries;
(ii) pay accounts payable and other obligations and liabilities other than in the ordinary course of business consistent with the past practices of the Company and the Company Subsidiaries;
(iii) (A) sell, assign, transfer, pledge, lease, sublease, license (other than licenses granted in the ordinary course of business), abandon or otherwise dispose of, permit to lapse, encumber or restrict the use of (including by merger, consolidation or encumber any property sale of capital stock, other equity interests or assets), except for dispositions of immaterial any entity, business, real or personal properties (including Intellectual Property), assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 rights of the Company Disclosure Schedule must be made pursuant or any of the Company Subsidiaries (including capital stock or other equity interests of the Company Subsidiaries) that are material to the terms set forth in such scheduleCompany’s business (other than Permitted Liens), (iiB) license out any Products, (C) license in any Products or (D) grant any Lien on any of its material assets;
(iv) amend or propose to amend otherwise change its charter or bylaws Organizational Documents;
(or comparable organizational documents) in a manner that would adversely affect Parent; (iiiv) split, combine combine, subdivide, redeem, reclassify, purchase or reclassify otherwise acquire, directly or indirectly, any shares of its capital stock or any rights, warrants or options to acquire any shares of its capital stock;
(vi) declare, or declareauthorize, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares (except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) any dividends paid by a wholly-owned direct the Company Subsidiaries to the Company or indirect other Company Subsidiary to such Company Subsidiary’s parent; Subsidiaries and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for any cash dividends paid by the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of Equityholders that are permitted by the Code and to avoid incurring any Taxes under Section 857 of the Code; DGCL);
(ivvii) redeem, purchase, acquire or offer to acquire any shares of its stock; capital stock or (v) enter into any contractother securities of, agreementor other ownership interests in, commitment the Company or arrangement with respect to any of the matters listed in clauses (i) through (iv) above; andCompany Subsidiaries;
(cviii) the Company shall notissue or sell, and shall not cause or permit any Company Subsidiary to, (i) issue, sellgrant, pledge or dispose ofotherwise encumber, or agree to issuesell, sellgrant, pledge or dispose ofencumber, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets class, whether pursuant to the Company Stock Plans or otherwise; provided, however, that otherwise (other than pursuant to the exercise of the Company may issue shares of Company Common Stock (A) upon exercise of Options that are outstanding on the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised in accordance with their respective terms as in effect on the date of this Agreement and terms);
(B) pursuant to other Company Plans as in effect on the date of this Agreement; (iiix) acquire or agree to acquire (A) (by merger, consolidation consolidation, recapitalization, joint venture or other business combination or acquisition of stock or assets) any real property, corporation, partnership partnership, limited liability company or other business organization or division thereof or (B) any assets or properties that, individually, have a purchase price in excess of Five Hundred Thousand Dollars ($500,000) or, in the aggregate, have a purchase price in excess of One Million Five Hundred Thousand Dollars ($1,500,000) (except an existing wholly-owned Company Subsidiary) for acquisitions of inventory, spare parts, office equipment and supplies and of replacements for worn or acquire other assets other than in the ordinary course; obsolete items);
(iiix) except for borrowings and re-borrowings in the ordinary course under the $6,314,000 construction loan related to The Reserve at Xxxxxxx PlantationSenior Debt (including all future renewals, Phase II, dated April 11, 2007replacements and extensions thereof), incur, create create, assume or assume guarantee any indebtedness for borrowed money or issue or amend the terms of sell any debt securities or assumecalls, options, warrants or other rights to acquire any debt securities of the Company or the Company Subsidiaries or guarantee or endorseany debt securities of another Person;
(xi) except in the ordinary course of business, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than by between the Company or a wholly-owned Company Subsidiary to and the Company or a wholly-owned Company Subsidiary; Subsidiaries;
(vxii) enter into, renew or materially modify into any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature Contract that would be required under the Exchange Act to be filed as an exhibit a Material Contract if entered into prior to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan)date hereof, other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services Contracts entered into in the ordinary course of business; ;
(vixiii) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any Material Contract other material rights or claims; than in the ordinary course of business;
(viixiv) pay, discharge, settle or compromise any material claim, action, suit or proceeding Proceeding pending or threatened against the Company or the Company Subsidiaries resulting in cash payment by the Company or the Company Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate;
(A) grant any current or former director, officer, manager, employee or employee-equivalent consultant of the Company or the Company Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefits or take any action to accelerate or increase vesting, payment or funding of any compensation arrangement (including relating equity-based compensation) to Taxes; any current or former director, officer, manager or employee not previously receiving or entitled to receive such type of compensation or benefit, except for normal increases in cash compensation (viiiincluding cash bonuses) make in the ordinary course of business or as required under the Company Plan in effect as of the date of this Agreement as provided to Purchaser as of the date hereof, (B) enter into or amend any Company Plan or employment, deferred compensation, consulting, severance, change of control, termination, indemnification or other agreement with or involving any current or former director, officer, manager or employee of the Company or the Company Subsidiaries, (C) hire any new employees, unless such hiring is in executive compensation; the ordinary course and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed One Hundred Thousand Dollars (ix$100,000) or (D) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not required by any existing Company Plan or other agreement or arrangement in effect on the date of this Agreement to any employee, officer, director, or other service provider of the Company or any of the Company Subsidiaries, whether past or present;
(xvi) change its the accounting principles, practices principles of the Company or methods in a manner that would adversely affect Parentthe Company Subsidiaries, except as may be required by the SEC, applicable law Law or GAAP; ;
(xxvii) make or rescind change any election relating material Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with any Governmental Authority related to Taxes unless Taxes, settle any Tax claim or assessment, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, if such action would reasonably be expected to materially increase the Tax liability of the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary for any taxable period ending after the Closing Date or otherwise agreed materially decrease the Tax attributes of the Company or any Company Subsidiary existing at the close of business on the Closing Date;
(xviii) cancel or amend any of the Company Insurance Policies or permit any Company Insurance Policy to terminate or lapse without replacing such policy with comparable coverage;
(xix) except for the transactions contemplated by this Agreement, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or recapitalization of the Parent and Company or any of the Company; Company Subsidiaries;
(xixx) enter into any tax protectionContract pursuant to which the Company or any of the Company Subsidiaries grants any exclusive marketing, sharing sales representative or indemnity agreement distribution rights to any third party or arrangement; grants any non-compete (xiiwhether based on geography, products or otherwise) unless the Contract is terminable by the Company or such Company Subsidiary for any reason and without liability on less than 90 days’ notice;
(xxi) enter into any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures new clinical studies in excess of 10Five Hundred Thousand Dollars ($500,000) individually or One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate or enter into new milestones in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(xxii) enter into new Contracts that provide for royalties, profit share or net share above 30% above in favor of other party;
(xxiii) authorize, or make any commitment with respect to, capital expenditures that are in excess of Two Hundred Fifty Thousand Dollars ($250,000) individually or Five Hundred Thousand Dollars ($500,000) in the Company’s approved operating budget for each such property for fiscal year 2007aggregate;
(xxiv) spend more than Two Hundred Fifty Thousand Dollars ($250,000) on any new lawsuit or more than Five Hundred Thousand ($500,000) in the aggregate on any existing lawsuits or start any new patent lawsuit or dismiss any existing lawsuits; or or
(xvixxv) agree, in writing or otherwise, to take any of the actions listed in the preceding clauses (i) through (xv) abovexxiv).
Appears in 1 contract
Conduct of the Company’s Business. The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent Except for matters set forth in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by law, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as for matters otherwise expressly permitted or required by the terms of this Agreement (including in connection with the Reorganization) or permitted as required by applicable Law (including the Pandemic Measures), from the date of this Agreement:
(a) Agreement to the business earlier of the Company Closing and the Company Subsidiaries shall be conducted only intermination of this Agreement in accordance with Article VIII, and the Company and the Company Subsidiaries shall not take any action, except in the ordinary course of business, Seller and the Company shall use commercially reasonable efforts to conduct the Company Business in the ordinary course of business, keep intact the Company Business and preserve intact the Company Business’ relationships with its present business organization customers and goodwillsuppliers with whom it currently deals, to keep available in each case, in all material respects. In addition (and without limiting the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 generality of the Code;
foregoing), except as set forth in Section 6.1 of the Company Disclosure Schedule or otherwise expressly permitted or required by the terms of this Agreement (bincluding in connection with the Reorganization) or except as required by applicable Law (including the Pandemic Measures), from the date of this Agreement to the earlier of the Closing and the termination of this Agreement in accordance with Article VIII, the Seller and the Company shall not, and shall not cause or permit any Company Subsidiary of the Seller Entities or Acquired Subsidiaries to, do any of the following: following with respect to the Company Business without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) amend the certificate of incorporation or bylaws or similar governing instruments of any Acquired Company;
(b) (i) increase the compensation or benefits of any Company Employee except (A) as required pursuant to the terms of any Company Benefit Plan or any Affiliated Benefit Plan in effect as of the date hereof or (B) increases in base compensation in the ordinary course of business consistent with past practice to Company Employees other than executive officers, provided, however, that the aggregate amount of all such increases may not exceed $75,000 on an annualized basis without Purchaser’s prior written consent, (ii) grant any severance or termination pay to any Company Employee except as required pursuant to the terms of any Company Benefit Plan or any Affiliated Benefit Plan in effect as of the date hereof, (iii) establish, adopt, enter into, materially amend or terminate any Affiliated Benefit Plan or any Company Benefit Plan; provided, that the foregoing shall not prohibit (A) any Acquired Company from entering into employment agreements in connection with new hires or from amending any employment agreement in connection with any promotion, in each case other than with respect to executive officers, to the extent consistent with past practices or (B) Seller from establishing, adopting, amending or terminating any Affiliated Benefit Plan that is a broad-based employee benefit plan or arrangement that applies substantially uniformly to Company Employees and other similarly situated employees of Seller and its Affiliates, (iv) adopt or amend any Affiliated Benefit Plan that covers Company Employees and that would materially increase the costs to the Acquired Companies other than with respect to the Company’s annual renewal and reenrollment of its health and welfare plans in the ordinary course of business, (v) enter into any collective bargaining agreement, or (vi) issue any equity or equity linked awards, including any stock options or restricted stock units to Company Employees, other than in the ordinary course of business consistent with past practice;
(c) incur any Indebtedness for borrowed money or issue any debt securities other than (i) Indebtedness between the Acquired Companies, (ii) borrowings under any instruments of Indebtedness existing as of the date hereof, (iii) Indebtedness that will be repaid on or before the Closing Date or (iv) other Indebtedness in an aggregate amount not to exceed $10,000,000;
(d) create any mortgage, lien, pledge or security interest on any of the assets of any of the Acquired Companies or any of the assets that will be transferred to the Acquired Companies pursuant to the Reorganization (other than Permitted Encumbrances), other than as required by any instruments of Indebtedness existing as of the date hereof or any Indebtedness incurred after the date hereof permitted in accordance with Section 6.1(c);
(e) make any material change in accounting methods, other than as required by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization;
(f) other than in the ordinary course of business consistent with past practice, (i) make or change any material Tax election or Tax accounting period, (ii) surrender any right to claim a refund of material Taxes, (iii) file any amended material Tax Return, or (iv) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, in each case, with respect to any Acquired Company;
(g) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or Person or division thereof, other than purchases of assets in the ordinary course of business consistent with past practice;
(h) sell, pledgeassign, leasetransfer, exclusively license, allow to expire or lapse or otherwise dispose of any of the properties, rights or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that areare material, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of to the Company Disclosure Schedule must be made pursuant to the terms set forth in such scheduleBusiness taken as a whole, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends than in the ordinary course of business, at a rate business consistent with past practice;
(i) settle or compromise any Action against the any of the Acquired Companies other than settlements or compromises of litigation where (i) the amount paid does not to exceed $0.27 per share 500,000 individually, and (ii) such settlement or compromise does not impose any material restrictions on the business or operations of the Acquired Companies or require any Acquired Company Common Stock; to admit liability;
(Bj) a prorated dividend commit to make any capital expenditure, capital addition or capital improvement (or series of related capital expenditures, capital additions or capital improvements) in excess of $1,500,000 individually or $5,000,000 in the aggregate, other than capital expenditures provided for in the period from budget previously made available to Purchaser or fail to approve and permit to be made any budgeted capital expenditure that is requested to be made by management of the last record date Company in the ordinary course of business consistent with the timing of such budget and the timing set pursuant forth in the request by management of the Company;
(k) cancel, terminate or materially and adversely amend any Material Contract, other than in the ordinary course of business consistent with past practice;
(l) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of capital stock of the Acquired Companies or make any other change with respect to the foregoing clause capital structure of the Acquired Companies;
(Am) through and including the Closing; (C) dividends paid by adopt a wholly-owned direct plan of complete or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parentpartial liquidation, not to be unreasonably withhelddissolution, conditioned merger, consolidation or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition recapitalization of any Excise Taxes under Section 4981 of the Code and Acquired Companies;
(n) declare any dividend or distribution in respect of capital stock or other equity interest of any Acquired Company with a payment date on or after the Closing Date, or enter into any agreement to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire repurchase any shares of common stock of the Company with a closing date on or after the Closing Date, except for dividends, distributions or other payments by any Acquired Subsidiary to the Company;
(o) change in any material respect the manner in which it manages its stockworking capital, including by delaying the payment of accounts payable or accelerating the collection of accounts receivable;
(p) effect any reduction in force, mass layoff or plant closure or take any similar action; or
(q) authorize any of, or commit or agree to take, whether in writing or otherwise, any of, the foregoing actions. Notwithstanding the foregoing or anything in this Agreement to the contrary, Seller, the Seller Entities and the Company may take (v) enter into any contractor not take, agreementas the case may be), commitment or arrangement with respect to the Company Business, any of the matters listed in clauses actions that would otherwise be prohibited under this Section 6.1 if reasonably necessary or prudent (i) through (iv) above; and
(c) in response to the Company shall notPandemic, and shall not cause or permit any Company Subsidiary to, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, the Pandemic Measures or any optionsother emergency situation, warrants or rights of any kind to acquire any shares of, its stock of any class or other property or assets whether pursuant to the Company Plans or otherwise; provided, however, that Seller shall, to the Company may issue shares of Company Common Stock extent practicable and legally permissible notify Purchaser prior to taking any such actions, or (Aii) upon exercise of Options that are outstanding on in connection with implementing the date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and are exercised Reorganization in accordance with their respective terms as Section 6.14. Nothing contained in effect on the date of this Agreement shall be construed to give Purchaser or any of its Affiliates, directly or indirectly, any right to control or direct the Company Business prior to the Closing or any other businesses or operations of Seller or its Affiliates. Prior to the Closing, Seller shall exercise, consistent with the terms and (B) pursuant to other Company Plans as in effect on the date conditions of this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition complete control and supervision of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment its Affiliates (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term and of more than one year their respective businesses and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensation; (ix) change its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xi) enter into any tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the ordinary course of business, and in accordance with their terms or as otherwise covered by insurance; (xv) on a property by property basis, make any expenditures in excess of 10% above the Company’s approved operating budget for each such property for fiscal year 2007; or (xvi) agree, in writing or otherwise, to take any of the actions listed in clauses (i) through (xv) aboveoperations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ingersoll Rand Inc.)
