Conduct of the Company’s Business. The Company covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement: (a) the business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business; (b) neither the Company nor any Subsidiary shall, directly or indirectly, do any of the following: (i) amend or propose to amend its Certificate of Incorporation or Bylaws or reincorporate in any jurisdiction; (ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary); (iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sell, pledge, accelerate, modify the terms of or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets, whether pursuant to the Company Option Plans or otherwise, provided, that the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereof; (c) neither the Company nor any Significant Subsidiary shall (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets except in the ordinary course of business; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material assets; (iii) enter into or modify any material contract, lease, agreement or commitment, except in the ordinary course of business; (iv) terminate, modify, assign, waive, release or relinquish any material rights or claims or amend any material rights or claims not in the ordinary course of business; (v) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or
Appears in 1 contract
Samples: Merger Agreement (Fujitsu LTD/Jp/)
Conduct of the Company’s Business. The Company covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or Except as otherwise expressly contemplated by this Agreement:
(a) Agreement or as set forth in Section 5.1 of the business of Disclosure Letter, during the period from the date hereof to the Closing Date, the Company and each of the Subsidiaries shall be conducted only in, will (x) conduct its business and the Company and the Subsidiaries shall not take any action except in, operations solely in the ordinary course of business;
business consistent with past practice (bincluding with respect to maintenance and prosecution of Owned Intellectual Property) and (y) use commercially reasonable efforts to preserve substantially intact its business organization and to preserve the present commercial relationships with Persons with whom the Company or any Subsidiary has material business relations. Without limiting the generality of the foregoing, except as expressly provided by this Agreement and as set forth in Section 5.1 of the Disclosure Letter, during the period from the date of this Agreement to the Closing Date, without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), neither the Company nor any Subsidiary shall, directly or indirectly, do any of the following: will:
(a) (i) amend create, incur, assume or propose to amend its Certificate of Incorporation or Bylaws or reincorporate in guarantee any jurisdiction; (ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or Indebtedness other distribution (payable in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid than in the ordinary course of business consistent with past practice and which may, by its terms, be prepaid at the Closing or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or to any wholly-owned Subsidiary); , except for extensions of trade credit in the ordinary course of business consistent with past practice;
(iiib) issue, sell, deliver, redeem, purchase, acquire purchase or offer to acquire amend any terms of (or permit any Subsidiary to redeem, purchase, acquire or offer to acquirei) any shares of its capital stock; stock or (ivii) issue, sell, pledge, accelerate, modify the terms of or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, convertible or exchangeable securities, subscriptions, rights (including any preemptive rights), stock appreciation rights, calls, “phantom” stock, “phantom” stock rights, stock-based performance units or commitments or rights of any kind character whatsoever to acquire which the Company or any Subsidiary is a party or may be bound requiring the issuance or sale of shares of any capital stock, or any security convertible or exercisable for or exchangeable into any capital stock, of the Company or any Subsidiary or (iii) any rights that are linked in any way to the price or value of any shares of, its of capital stock of any class or other property or assets, whether pursuant to the Company Option Plans or otherwise, provided, that any Subsidiary or the value of the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereofor any Subsidiary or any part thereof;
(c) neither increase the rate of compensation or benefits of, or pay or agree to pay any benefit to (including severance or termination pay), any Company nor Personnel, except as may be required by any Significant Subsidiary shall existing Company Plan set forth in Section 5.1(c) of the Disclosure Letter in accordance with its terms as of the date hereof;
(d) enter into, adopt, terminate or amend (i) transferany Company Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, or (ii) any agreement with any consultant or independent contractor, in each case except as required by Applicable Law;
(e) sell, lease, license, sell, mortgage, pledge, transfer or otherwise dispose of capital assets, real, personal or encumber mixed, which have an aggregate book value in excess of $300,000 or that constitute Owned Intellectual Property, or create or permit any material assets Lien (other than a Permitted Lien) on any properties or assets, whether real or personal, which have an aggregate book value in excess of $300,000 or that constitute Owned Intellectual Property, in each case except for non-exclusive licenses of Intellectual Property to customers or distributors in the ordinary course of business; business consistent with past practice;
(iif) acquire (or agree to acquire by mergermerging or consolidating with, consolidation or acquisition of by purchasing the stock or assets) a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership 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 aggregate, to the Company and the Subsidiaries (other material assets; (iii) enter into or modify any material contract, lease, agreement or commitment, except than purchases of raw materials and finished goods in the ordinary course of business; business consistent with past practice);
(ivg) terminateenter into, modify, assign, waive, release modify or relinquish amend in any material rights respect or claims or amend terminate any material rights Real Property Lease (except modifications or claims not amendments in connection with renewals of leases and other modifications, amendments and terminations in the ordinary course of business; business consistent with past practice) or any other Material Contract or any Affiliate Contract;
(h) waive or release any rights of material value, or cancel, compromise, release or assign any material Indebtedness owed to it;
(i) cancel or terminate any material insurance policy naming it as a beneficiary or a loss payable payee without obtaining comparable substitute insurance coverage;
(j) hire any new employee or terminate the employment of any Employee, other than due to such individual’s death or disability or for cause (each as determined by the Company or the applicable Subsidiary in its reasonable discretion in the ordinary course of business consistent with past practice), or transfer the employment of any individual between the Company and the Subsidiaries, on the one hand, and Seller or any of its Affiliates (other than the Company and the Subsidiaries), on the other hand;
(k) amend its certificate of incorporation or by-laws or certificate of formation or operating agreement;
(l) change any of its financial accounting principles, methods or practices;
(m) (i) make, change or rescind any material election in respect of Taxes, (ii) extend or waive, or agree to extend or waive, any statute of limitation with respect to the assessment, determination or collection of Taxes, (iii) settle, resolve or otherwise dispose of any material Legal Proceeding relating to Taxes, (iv) change any method of accounting for U.S. federal income or foreign Tax purposes, or (v) pay, discharge amend any Tax Return of the Company or satisfy any Subsidiary;
(n) change in any material claimsrespect its fiscal year-end inventory, liabilities shipping operations or obligations cut-off procedures;
(absoluteo) (i) in the case of the Company, accrueddeclare, asserted set aside or pay any dividends on or make any other distributions in respect of any of its capital stock; provided that the Company may declare and/or distribute or dividend cash to Seller at any time on or prior to the Closing Date so long as the Company has sufficient capital to operate its business in the ordinary course up to the Closing Date, (ii) in the case of any Subsidiary organized outside of the United States, declare, set aside or pay any dividends on or make any other distribution in respect of any of its capital stock or other equity interests to the Company or any Subsidiary organized in the United States or (iii) split, combine, reclassify or otherwise amend any terms of any shares or series of its capital stock;
(p) settle or compromise any Legal Proceeding brought by or against the Company or any Subsidiary other than for claims brought against the Company or any Subsidiary that are settled or compromised solely upon payment of cash (and so long as (i) such settlement or compromise does not result in any other liability or other obligation or undertaking of the Company or any Subsidiary, (ii) includes a complete and unconditional release of the Company or any Subsidiary related to the matters underlying such claim, (iii) the Company has, at such time of settlement or compromise, sufficient cash on hand to make such payment and (iv) the Company provides written notice of such settlement or compromise to Buyer prior to the time at which such settlement or compromise becomes binding on the Company or any Subsidiary) to be paid by the Company or any Subsidiary prior to Closing in an amount not to exceed $100,000 for each such settlement or compromise;
(q) deviate in any material respect from the capital expenditure budget set forth in Section 5.1(q) of the Disclosure Letter, including with respect to the timing (as such timing occurs in the ordinary course of business consistent with past practice) of such capital expenditures; or
(r) agree or commit, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Conduct of the Company’s Business. (a) The Company covenants and agrees Sellers hereby covenant and agree that, prior to from the Effective Timedate hereof through and including the Closing Date, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this AgreementAgreement or consented to in writing by the Purchaser, the Company will and Sellers will take all actions within their control to cause the Company to:
(ai) the business of the Company and the Subsidiaries shall be conducted operate only in, and the Company and the Subsidiaries shall not take any action except in, in the ordinary course of business;
(ii) preserve intact its business organization, maintain its rights and ongoing operations, retain the services of its respective officers and key employees and maintain its relationship with its respective officers and key employees and maintain its relationship with its respective customers and suppliers;
(iii) maintain and keep its properties and assets in good working order and condition, ordinary wear and tear excepted;
(iv) keep in full force and effect insurance comparable in amount and scope of coverage to that currently maintained; and
(v) operate its business in compliance with all applicable Laws.
(b) neither The Company and Sellers hereby covenant and agree that, from the date hereof through and including the Closing Date, unless otherwise expressly contemplated by this Agreement or consented to in writing by the Purchaser, the Company nor shall not, and Sellers shall not permit the Company to:
(i) allow or effect any Subsidiary shallsale, directly transfer, Lien or indirectly, do other disposition of any of the following: (i) amend or propose Company’s capital stock, except for the sale of the Shares to amend its Certificate of Incorporation or Bylaws or reincorporate in any jurisdiction; the Purchaser contemplated hereunder;
(ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary); (iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sellgrant, pledgedeliver or sell or authorize or propose the issuance, accelerategrant, modify the terms of delivery or dispose sale of, or agree to issue, sell, pledge, accelerate, modify purchase or propose the terms of or dispose purchase of, any additional shares ofcapital stock of the Company, or any securities convertible into, exercisable or exchangeable for, or any optionssubscriptions, warrantsrights, callswarrants or options to acquire, or other agreements or commitments or rights of any kind character obligating the Company to issue or purchase any such shares or other convertible securities;
(iii) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization;
(iv) amend its articles of incorporation or bylaws;
(v) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any capital stock of the Company, or directly or indirectly repurchase, redeem or otherwise acquire any shares of, its of Company’s capital stock of any class (or options, warrants or other property rights convertible into, exercisable or assets, whether pursuant to the Company Option Plans or otherwise, provided, that the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereofexchangeable for such common stock);
(cvi) neither the Company nor any Significant Subsidiary shall (i) transfersell, lease, license, sell, mortgage, pledge, transfer or otherwise dispose of or encumber grant any security interest in any of its properties or assets, including without limitation the sale of any accounts receivable of the Company, except for sales of assets in the ordinary course of business and consistent with past practice;
(vii) make any capital investment in, or any loan to, any other Person except for normal travel and expense advances to employees consistent with past practices;
(viii) make any capital expenditures or commitments therefor;
(ix) make any loan to, or enter into any other transaction with, any of its directors, officers, and employees outside the ordinary course of business;
(x) other than (A) as expressly contemplated by any Material Contract or (B) payroll expenditures in the ordinary course of business consistent with past practice, make any expenditures or enter into any commitment or transaction involving expenditures exceeding $35,000 individually or $150,000 in the aggregate;
(xi) pay, discharge, waive or satisfy, in any amount in excess of $25,000 in any one case, or $100,000 in the aggregate, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet or trade payables and other obligations in the ordinary course of business consistent with past practices or any repayment of Indebtedness of the Company prior to Closing as contemplated by this Agreement or payment of any contributions or amounts required to correct any deficiencies and obtain compliance with respect to the Company’s 401(k) plan;
(xii) adopt or change accounting methods or practices (including any change in depreciation or amortization policies) other than as required by GAAP or applicable Law;
(xiii) (A) make or change any election in respect of Taxes, (B) adopt or change any accounting method in respect of Taxes, (C) settle any claim or assessment in respect of Taxes, (D) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, or (E) file any income or other material Tax Return or amend any Tax Return unless a copy of such Tax Return or amended Tax Return has been delivered to Purchaser for review a reasonable time prior to filing and Purchaser has approved such Tax Return or amended Tax Return in writing, which approval may not be unreasonably delayed, conditioned or withheld;
(xiv) revalue any of its assets (whether tangible or intangible), including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice;
(xv) incur any Indebtedness or guarantee any Indebtedness of any Person or issue or sell any debt securities, or guarantee any debt securities of any Person;
(xvi) waive or release any material assets right or claim, including any write-off or other compromise of any account receivable, other than in the ordinary course of business consistent with past practice;
(xvii) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company or its affairs;
(xviii) (A) sell, lease, license or transfer to any Person any rights to any Company Owned IP or enter into any agreement or modify any existing agreement with respect to any Company Owned IP with any Person or with respect to any Intellectual Property of any third party, other than non-exclusive licenses of the Company Owned IP in connection with the sale of products or services to customers by Company in the ordinary course of business consistent with past practices or (B) purchase or license any Intellectual Property except in the ordinary course of business; business consistent with past practice;
(iixix) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any of the Real Property Leases;
(xx) amend or otherwise modify (or agree to do so) in any material respect the terms of any of the contracts or agreements set forth in the Disclosure Schedules, or violate any of the contracts or agreements set forth in the Disclosure Schedules;
(xxi) acquire (or agree to acquire by mergermerging or consolidating with, consolidation or acquisition of stock by purchasing any assets or assets) equity securities of, or by any other manner, any business or any corporation, partnership partnership, association or other business organization or division thereof thereof;
(xxii) enter into any strategic alliance, affiliate agreement or joint marketing arrangement or agreement; or
(xxiii) cancel or amend any insurance policy.
(c) The Company and Sellers hereby covenant and agree that, from the date hereof through and including the Closing Date, unless otherwise expressly contemplated by this Agreement or consented to in writing by the Purchaser, the Company shall not, and Sellers shall not permit the Company to:
(i) hire, engage or terminate any employees, consultants or independent contractors of the Company or otherwise cause any employees, consultants or independent contractors to resign or terminate their relationship with the Company (other material assets; than for cause);
(ii) change the remuneration or terms of employment of any employees, officers or directors of the Company or make any payment (except as required or contemplated by this Agreement), commitment or obligation of any kind for the payment (whether in cash, property or equity) of a severance payment, termination payment, retention payment, bonus or other additional compensation to any such person;
(iii) enter into promote or modify demote any material contract, lease, agreement employees or commitment, except in change the ordinary course employment status or titles of business; any of the employees of the Company;
(iv) terminate, modify, assign, waive, release add or relinquish establish any material rights or claims or amend any material rights or claims not in the ordinary course of businessnew Plans; or
(v) payamend or terminate any Plans, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted orother than as required by Law.
Appears in 1 contract
Conduct of the Company’s Business. The Company covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement:
: (a) the business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business;
; (b) neither the Company nor any Subsidiary shall, directly or indirectly, do any of the following: (i) amend or propose to amend its Certificate of Incorporation or Bylaws or reincorporate in any jurisdiction; (ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary); (iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sell, pledge, accelerate, modify the terms of or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets, whether pursuant to the Company Option Plans or otherwise, provided, that the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereof;
; (c) neither the Company nor any Significant Subsidiary shall (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets except in the ordinary course of business; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material assets; (iii) enter into or modify any material contract, lease, agreement or commitment, except in the ordinary course of business; (iv) terminate, modify, assign, waive, release or relinquish any material rights or claims or amend any material rights or claims not in the ordinary course of business; (v) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business, reflected or reserved against in, or contemplated by, the consolidated financial statements of the Company and its Subsidiaries included in the Company SEC Filings; or (vi) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company or any Subsidiary, or, if the Company may be liable or obligated to provide indemnification, against the Company's directors or officers, before any court, governmental agency or arbitrator; (d) neither the Company nor any Subsidiary shall (i) incur any long-term debt or, except in the ordinary course of business in amounts consistent with past practice, short-term debt; (ii) incur or modify any material indebtedness or other liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (directly or indirectly, contingent or otherwise) for the obligations of any other person, except in the ordinary course of business; or (iv) make any loans, advances or capital contributions to, or investments in, any other person (other than to wholly-owned Subsidiaries or customary loans or advances to employees in the ordinary course of business); (e) neither the Company nor any Subsidiary shall grant any increase in the salary or other compensation of its employees, or grant any bonus to any employee or enter into any employment agreement or make any loan to or enter into any material transaction of any other nature with any employee of the Company or any Subsidiary, except (i) pursuant to the terms of employment agreements or Company policies in effect on the date hereof and previously disclosed to Parent and (ii) in the case of 20 24 employees who are not executive officers of the Company, in the ordinary course of business and consistent with past practice; (f) neither the Company nor any Subsidiary shall, except as contemplated by this Agreement or as may be required by applicable law or regulation or, in the case of employees who are not executive officers of the Company, in the ordinary course of business (i) adopt, increase, accelerate the vesting of or payment of any amounts in respect of, or otherwise amend, in any respect, any collective bargaining, bonus, profit sharing, incentive or other compensation, stock option, stock purchase or restricted stock, insurance, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund, plan or arrangement for the benefit or welfare of any directors, officers or employees (including, without limitation, any such plan or arrangement relating to severance or termination pay); or (ii) enter into any employment or severance agreement with or grant any severance or termination pay to any officer or director of the Company or any Subsidiary; (g) neither the Company nor any Subsidiary shall take any action that would make any representation or warranty of the Company hereunder inaccurate in any respect at, or as of any time prior to, the Effective Time, or omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any respect at any such time; (h) neither the Company nor any Subsidiary shall change any of the accounting methods used by it, unless required by GAAP or other applicable accounting principles; (i) neither the Company nor any Subsidiary shall make any Tax election (other than in the ordinary course of preparing and filing its Tax returns) or settle or compromise any Tax liability or investigation;
Appears in 1 contract
Samples: Merger Agreement (Amdahl Corp)
Conduct of the Company’s Business. The Company covenants and agrees that, prior to between the date of this Agreement and the Effective Time, unless Parent shall otherwise consent in writing or writing, and except as otherwise expressly contemplated by this Agreement:
(a) hereby, the business of the Company and the its Subsidiaries shall be conducted only in, and the Company and the Subsidiaries such entities shall not take any action except in, the ordinary course of business;. By way of amplification and not limitation, except as otherwise expressly contemplated by this Agreement or as otherwise set forth in the Company Schedule, the Company agrees on behalf of itself and its Subsidiaries (other than CMC, which shall not be subject to this Section 4.1) that, without the prior written consent of Parent, they will, between the date of this Agreement and the Effective Time:
(ba) neither the Company nor any Subsidiary shall, not directly or indirectly, indirectly do any of the following: (i) amend or propose to amend its Certificate of Incorporation or Bylaws or reincorporate in any jurisdictionBy-Laws; (ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) otherwise with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary)shares; (iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sell, pledge, accelerate, modify the terms of pledge or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments warrants or rights of any kind to acquire any shares of, its capital stock stock, its shares of Parent Common Stock or of any class or other property or assets, assets whether pursuant to any rights agreement, stock option plans described in the Company Option Plans Schedule or otherwise, provided, provided that the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof options, warrants and convertible securities and may take issue one or more stock options (the actions contemplated "Replacement Options") to replace the conversion rights contained in Section 2.6 hereof;
(c) neither the Company nor any Significant Subsidiary shall (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets except in the ordinary course of business; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material assets; (iii) enter into or modify any material contract, lease, agreement or commitment, except in the ordinary course of business; (iv) terminate, modify, assign, waive, release or relinquish any material rights or claims or amend any material rights or claims not in the ordinary course of business; (v) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted orsuch convertible
Appears in 1 contract
Conduct of the Company’s Business. The Company and each Shareholder covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement:
(a) the business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business;business and consistent with past practice; and
(b) neither the The Company nor any Subsidiary shallshall not, directly or indirectly, do any of the following: :
(i) sell, pledge, dispose of or encumber (or permit any of its subsidiaries to sell, pledge, dispose of or encumber) any assets of the Company or any of its subsidiaries, except inventory and immaterial assets in the ordinary course of business and except the granting of licenses with respect to the Inframax(R) product in the ordinary course of business; (ii) amend or propose to amend its Certificate Restated Articles of Incorporation Organization or Bylaws or reincorporate in any jurisdictionBy-Laws; (iiiii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) otherwise with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary)shares; (iiiiv) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary of its subsidiaries to redeem, purchase, acquire or offer to acquire) any shares of its capital stockstock of any class; or (ivv) enter into any contract, agreement, commitment or arrangement with respect to any of the matters set forth in this paragraph (b);
(c) The Company shall not (i) issue, sell, pledge, accelerate, modify the terms of pledge or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments warrants or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets, whether pursuant to except in respect of the Company Option Plans or otherwise, provided, that the Company may issue shares exercise of Company Common Stock pursuant to Options, Series C Stock Options and/or the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to Warrant in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereof;
(c) neither the Company nor any Significant Subsidiary shall (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets except in the ordinary course of businessaccordance with their respective terms; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material assets(except an existing wholly-owned subsidiary); (iii) incur any indebtedness for borrowed money or issue any debt securities except for borrowings in the ordinary course of business under the Company's revolving credit agreement with Silicon Valley Bank; (iv) enter into or modify any material contract, lease, agreement or commitment, except in the ordinary course of businessbusiness and consistent with past practice; (ivv) terminate, modify, assign, waive, release or relinquish any material contract rights or claims or amend any material rights or claims not in the ordinary course of businessbusiness or (vi) settle or compromise any claim, action, suit or proceeding pending or threatened against the Company, or, if the Company may be liable or obligated to provide indemnification, against the Company's directors or officers, before any court, governmental agency or arbitrator; provided that nothing herein shall require any action that might impair or otherwise affect the obligation of any insurance carrier under any insurance policy maintained by the Company;
(vd) payThe Company shall not grant any increase in the salary or other compensation of its employees, discharge except pursuant to the terms of employment agreements in effect on the date hereof and listed on a Schedule hereto, or satisfy grant any bonus to any employee or enter into any employment agreement or make any loan to or enter into any material claimstransaction of any other nature with any employee of the Company or any subsidiary;
(e) The Company shall not take any action to institute any new severance or termination pay practices with respect to any directors, liabilities officers or obligations employees of the Company or its subsidiaries or to increase the benefits payable under its severance or termination pay practices;
(absolutef) The Company shall not adopt or amend, accruedin any respect, asserted orexcept as contemplated hereby or as may be required by applicable law or regulation, any collective bargaining, bonus, profit sharing, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund, plan or arrangement for the benefit or welfare of any directors, officers or employees;
(g) The Company shall not intentionally take any action which might in any manner prevent the business combination to be effected by the Merger from being accounted for as a pooling-of-interests by Parent for the purposes of its consolidated financial statements under GAAP and applicable SEC rules and regulations;
(h) The Company shall use reasonable good faith, to the extent not prohibited by the foregoing provisions of this Section 7.01, to maintain its relationships with its distributors, suppliers and customers, and if and as requested by Parent or Acquisition, (i) the Company shall use reasonable good faith efforts to make reasonable arrangements for representatives of Parent or Acquisition to meet, together with representatives of the Company, with customers and suppliers of the Company requested by Parent in order to ensure that the Company's relationships with such customers and suppliers will remain in force under substantially the same terms following the Effective Time as are in effect on the date hereof, and (ii) the Company shall schedule, and the management of the Company shall participate in, meetings of representatives of Parent or Acquisition with employees of the Company or any of its subsidiaries;
(i) The Company and the other parties thereto shall terminate, effective as of the Effective Time, each of the agreements disclosed in Schedule 3.02
(a) to which they are parties, except as otherwise set forth in such Schedule 3.02(a);
(j) The Company shall hold a shareholders' meeting for the purpose of authorizing and approving the consummation of the Merger in accordance with the provisions hereof no later than August 27, 1997;
(k) The Company shall use good faith efforts, dedicating all resources required, to complete the Merger so that the Effective Time shall occur not later than August 29, 1997; and
(l) The Company shall use reasonable efforts to obtain, prior to the Effective Time, a written undertaking of Silicon Valley Bank to be bound by the provisions of Section 7.11 hereof.
Appears in 1 contract
Samples: Merger Agreement (Bisys Group Inc)
