Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock; (ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business; (iii) amend the Company Certificate or the Company Bylaws; (iv) merge or consolidate with any other person; (v) acquire assets or capital stock of or other equity interests in any other person; (vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity; (vii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws; (viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws; (ix) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority; (x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule; (xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries); (xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule; (xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement; (xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices; (xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c); (xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or (xvii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Intersil Corp/De), Merger Agreement (Intersil Corp/De)
Conduct of the Company’s Operations. During the period from Between the date of this Agreement to and the earlier of (i) the Effective Time, except as otherwise expressly contemplated by this Agreement Time and (ii) the transactions contemplated hereby or as set forth in Section 5.3(c) to date on which Merger Sub’s designees constitute a majority of the members of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Board, the Company shall conduct its operations in the ordinary course, course except as expressly contemplated by this Agreement and the Transactions and shall use all its reasonable best efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to maintain all of its operating assets in their current condition (normal wear and tear excepted), to the end that its their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as required by Applicable Law, as otherwise expressly contemplated or permitted by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c6.3(c) to of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value stock (except grants of the Company Common Stock on the date of grant for grants Options to newly hired or promoted employees and shares to be granted under the Company 423 Planemployees in the ordinary course of business consistent with past practices provided that the Company shall consult with Parent prior to making any such grants or making any recommendation to the Company Board with respect to such grants), (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of the Company Stock Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreementhereof), (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend make or propose any changes in the Company Certificate Company’s Articles or the Company Company’s Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other personperson outside of the ordinary course of business consistent with past practice in an amount in excess of $200,000;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business, consistent with past practice or pay, discharge or satisfy any claims, liabilities or obligations other than in the ordinary course of business or as reflected or reserved against in the most recent financial statements;
(vii) create any subsidiaries;
(viii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than in the ordinary course offer letters of business consistent with past practice with respect to newly hired non-officer employees that provide (except for employment that is “at will” and severance or change in control agreements, which do not provide any post termination benefits in all cases shall require the prior written consent of Parent), except as may be required by Applicable Laws, for bonuses disclosed in Section 5.15(l) of the Company Disclosure Schedule or otherwise increase the compensation or benefits provided to any present or former officer, director, consultant or employee except as may be required by Applicable LawsLaw, or grant, or reprice the exercise or payment of any of the Company Stock Options or other equity-based awards (except for grants to the extent permitted by Section 6.3(c)(i));
(viiiix) enter into, adopt or amend any employee benefit or similar plan Plan, except as may be required by Applicable LawsLaw;
(ixx) take any action that could give rise to severance benefits payable to any officer or director of the Company as a result of consummation of the Transactions;
(xi) change any method or principle of accounting in a manner that is inconsistent with past practice practice, except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxii) amendsettle any Actions, terminate whether now pending or modify hereafter made or brought involving, individually or in the aggregate, an amount in excess of $200,000;
(xiii) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract listed set forth in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 5.16 of the Company Disclosure Schedule;
(xixiv) enter into any confidentiality, standstill or non-compete confidentiality agreements or arrangements which after other than in the Effective Time would apply ordinary course of business consistent with past practice (other than as permitted, in each case, by Section 6.3(e));
(xv) incur, authorize or purport commit to apply to Parent any capital expenditures in excess of the amount incurred in accordance with prior practice;
(xvi) permit any material insurance policy naming the Company or any of its subsidiaries as a beneficiary or a loss payee to be canceled or terminated, except in the ordinary course of business;
(xvii) enter into any Contract, other than any agreement entered into in the ordinary course of business consistent with past practice, or amend or modify in any material respect or terminate any Contract or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its subsidiaries);
(xiixviii) incur make any payments in respect of policies of directors’ and officers’ liability insurance (premiums or commit to otherwise), other than premiums paid in respect of its current or renewed or replacement policies;
(xix) take any capital expenditures, individually or action that will likely result in the aggregate, in excess of the amount representations and warranties set forth in Section 5.3(c) to the Company Disclosure ScheduleArticle V becoming false or inaccurate in any material respect;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixx) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Coleman Cable, Inc.), Merger Agreement (Technology Research Corp)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the The Company shall conduct its operations in the ordinary coursecourse consistent with past practice, and shall use all commercially reasonable efforts to maintain and preserve its business organization and its material rights and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to maintain all of its operating assets in their current condition (normal wear and tear excepted), to the end that its their goodwill and ongoing business shall not be impaired in any material respectrespect (except as a result of the implementation of FAS142 as required by the Financial Accounting Standards Board). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company and each of its Subsidiaries shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c5.3(b) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock (other than dividends or distributions from any directly or indirectly wholly owned subsidiary of the Company to the Company or another directly or indirectly wholly owned subsidiary of the Company) or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, ; (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement), (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its the Company capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any non-de minimis portion of its property or assets other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend the Company Certificate make or the Company Bylawspropose any changes in its certificate of incorporation, by-laws or other similar governing documents;
(iv) merge or consolidate with any other personPerson or dissolve, liquidate, restructure or otherwise alter the corporate structure of the Company or any of its Subsidiaries;
(v) acquire a material amount of assets or capital stock of or other equity interests in any other personPerson;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individualPerson other than trade payables in the ordinary course of business, corporation or other entityconsistent with past practice;
(vii) create any Subsidiaries;
(viii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than in the ordinary course offer letters of business consistent with past practice with respect to newly hired non-officer employees that provide of the Company (except for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsseverance agreements, which, in all cases, shall require the prior written consent of Parent), or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee employee, except as may be required by Applicable Laws or existing contractual arrangements disclosed to Parent prior to the date hereof, or grant, reprice, or accelerate the exercise or payment of any Company Options or other equity-based awards;
(ix) enter into, adopt or amend any Plan, except as shall be required by Applicable Laws;
(viiix) enter into, adopt or amend take any employee benefit action that could give rise to severance benefits (including payments under any Section 4.15(i) Arrangement) payable to any Person set forth in Section 4.15(i) to the Company Disclosure Schedule (including taking any action that could give rise to a claim of "Good Reason" termination or similar plan except as may be required claim by Applicable Lawsany such Person);
(ixxi) change any material method or principle of accounting in a manner that is inconsistent with past practice Tax or financial accounting, except to the extent required by generally accepted accounting principles Applicable Laws or GAAP as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries)Company's regular independent accountants;
(xii) incur settle any Actions, whether now pending or commit to any capital expendituresmade or brought after the date of this Agreement involving, individually or in the aggregate, an amount in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule$250,000;
(xiii) modify modify, amend or waive terminate, or waive, release or assign any material rights or claims, or fail to exercise a right of its rights under renewal, with respect to, any provision of Company Disclosed Contract, any other material contract to which the Company or a Subsidiary is a party or any confidentiality agreement to which the Company or standstill agreementa Subsidiary is a party;
(xiv) enter into any license of technology outside confidentiality agreements or arrangements other than in the Company’s ordinary and usual course of business consistent with past practicespractice (other than as permitted, in each case, by Section 5.3(d));
(xv) make any change to the terms of payment or payment practices that, individually or in the aggregate, amounts to a material change to the terms of payment or payment practices with respect to a non-de minimis portion (by dollar value or number of customers or number of suppliers) of the Company's accounts receivable or accounts payable;
(xvi) incur, make or commit to any capital expenditures not provided for in the Company's annual capital expenditures budget provided to Parent on or prior to the date of this Agreement;
(xvii) fail to use all commercially reasonable efforts to collect the Company's outstanding receivables;
(xviii) generate, create or allow any receivables other than in the ordinary course of business consistent with past practice;
(xix) other than with respect to transactions between the Company and its directly or indirectly wholly owned Subsidiaries or between two or more of the Company's directly or indirectly wholly owned Subsidiaries, make any payments in respect of policies of directors' and officers' liability insurance (premiums or otherwise) other than premiums paid in respect of its current policies not in excess of the amount paid prior to the date of this Agreement;
(xx) make any payment to, or engage in any transaction with, or guarantee or assume any obligation or indebtedness of, or relieve any obligation to the Company or any of its Subsidiaries of, any Affiliate of the Company, or any affiliate of any such Affiliate of the Company, other than pursuant to Plans (to the extent permissible in light of clause (viii) of this Section 5.3(b)) and other than reimbursement for or advancement of routine expenses;
(xxi) incur, make or commit to any fees related to this Agreement and the transactions contemplated hereby (including fees of attorneys, accountants and investment bankers, including regular fees and any success-based fees or fees contingent upon such transactions) such that the aggregate of such fees payable as of the Closing Date or, thereafter, as a result of the Closing exceeds the amounts set forth in Section 4.6 to the Company Disclosure Schedule.
(xxii) enter into or carry out any other material transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c)business;
(xvixxiii) except in the ordinary course of business consistent with past practice (A) make, revoke or amend any material Tax election, (B) settle or compromise any material claim or assessment with respect to Taxes, but only if such settlement or compromise would either individually result in a Tax liability in excess of $250,000 or in combination with all other material Tax claims or assessments settled or compromised since the date of this Agreement result in aggregate Tax liabilities in excess of $250,000, (C) execute any consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes, or (D) amend any material Tax Returns except in connection with the settlement or compromise of a claim or assessment that would not either individually result in a Tax liability in excess of $250,000 or in combination with all other material Tax claims or assessments settled or compromised since the date of this Agreement result in aggregate Tax liabilities in excess of $250,000;
(xxiv) other than pursuant to this Agreement, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries that is inconsistent with the prompt consummation of the transactions contemplated by this Agreement, or could otherwise reasonably be expected to have a Material Adverse Effect on the Company;
(xxv) make any payment or distribution to, on or in respect of, or set aside any funds or establish any "sinking" or similar fund for or in respect of the Notes, whether in respect of interest, repayment of principal or otherwise;
(xxvi) take any action that could reasonably be expected to result in the representations and warranties set forth in Article IV becoming false or inaccurate in any material respect;
(xxvii) permit or cause any subsidiary of its Subsidiaries to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxviii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (NCS Healthcare Inc), Merger Agreement (Genesis Health Ventures Inc /Pa)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by Time or the date of termination of this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Agreement, the Company shall conduct its operations in and the ordinary course, and Subsidiary shall use all its reasonable efforts to maintain and preserve its their respective business organization organizations and to retain the services of its their respective officers and key employees and maintain relationships with customers, suppliers, lessees, licensees suppliers and other third parties to the end that its their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, neither the Company shall notnor Subsidiary shall, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedulehereby, without the prior written consent of Parent (which Parent, such consent shall not to be unreasonably withheld, delayed withheld or conditioned):delayed:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sellSell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its personal property or assets other than sales or leases of inventory or licensing of Intellectual Property Assets in the ordinary course Ordinary Course of business;Business.
(ii) Make or propose any changes in its Articles of Incorporation or Bylaws.
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge Merge or consolidate with any other person;
(v) Person or acquire a material amount of assets or capital stock of or other equity interests in any other person;Person or enter into any confidentiality agreement with any Person other than in the Ordinary Course of Business.
(viiv) incurIncur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;, or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of ordinary course trade payables consistent with past practice other than its Subsidiaries, except in the Ordinary Course of Business.
(viiv) enter Create any subsidiaries.
(vi) Enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide employee.
(vii) Change its method of doing business, in any post termination benefits except as may be required by Applicable Lawsmaterial respect, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;
(viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any material method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPpractice.
(viii) Settle any Proceeding, whether now pending or hereafter made or brought involving an amount in excess of Twenty-Five Thousand and No/100 Dollars ($25,000.00).
(ix) Modify, amend or terminate, or make waive, release or assign any material Tax election (unless required by law rights or consistent claims with prior practice) or settle respect to, any material Tax liability Contract to which is the subject of dispute between the Company and or Subsidiary is a Governmental Authority;party or any confidentiality agreement to which the Company or Subsidiary is a party.
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur Incur or commit to any capital expenditures, obligations or liabilities in respect thereof which in the aggregate exceed or would exceed Fifty Thousand and No/100 Dollars ($50,000.00) on a cumulative basis.
(xi) Issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any securities of the Company or Subsidiary, or rights or obligations convertible into or exchangeable for any securities of the Company or Subsidiary, or alter the terms of any presently outstanding options or make any changes, by split-up, combination, reorganization or otherwise in the capital structure of the Company or Subsidiary.
(xii) Declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock.
(xiii) Grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Parent, or adopt any new severance plan.
(xiv) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock.
(xv) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Company or Subsidiary, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof.
(xvi) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not (in each case) otherwise permitted by the provisions of this Section 6.2.
(xvii) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement.
(xviii) Make any tax election that, individually or in the aggregate, is reasonably likely to adversely affect in excess any material respect the tax liability or tax attributes of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;or Subsidiary or settle or compromise any material income tax liability.
(xiiixix) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xvii) agree Agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Practice Works Inc), Merger Agreement (Medical Dynamics Inc)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by Time or the date of termination of this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Agreement, the Company shall conduct its operations in and the ordinary course, and Subsidiary shall use all its reasonable efforts to maintain and preserve its their respective business organization organizations and to retain the services of its their respective officers and key employees and maintain relationships with customers, suppliers, lessees, licensees suppliers and other third parties to the end that its their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, neither the Company shall notnor Subsidiary shall, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedulehereby, without the prior written consent of Parent (which Parent, such consent shall not to be unreasonably withheld, delayed withheld or conditioned):delayed:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sellSell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its personal property or assets other than sales or leases of inventory or licensing of Intellectual Property Assets in the ordinary course Ordinary Course of business;Business.
(ii) Make or propose any changes in its Articles of Incorporation or Bylaws.
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge Merge or consolidate with any other person;
(v) Person or acquire a material amount of assets or capital stock of or other equity interests in any other person;Person or enter into any confidentiality agreement with any Person other than in the Ordinary Course of Business.
(viiv) incurIncur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;, or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of ordinary course trade payables consistent with past practice other than its Subsidiaries, except in the Ordinary Course of Business.
(viiv) enter Create any subsidiaries.
(vi) Enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide employee.
(vii) Change its method of doing business, in any post termination benefits except as may be required by Applicable Lawsmaterial respect, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;
(viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any material method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPpractice.
(viii) Settle any Proceeding, whether now pending or hereafter made or brought involving an amount in excess of Twenty-Five Thousand and No/100 Dollars ($25,000.00).
(ix) Modify, amend or terminate, or make waive, release or assign any material Tax election (unless required by law rights or consistent claims with prior practice) or settle respect to, any material Tax liability Contract to which is the subject of dispute between the Company and or Subsidiary is a Governmental Authority;party or any confidentiality agreement to which the Company or Subsidiary is a party.
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur Incur or commit to any capital expenditures, obligations or liabilities in respect thereof which in the aggregate exceed or would exceed Fifty Thousand and No/100 Dollars ($50,000.00) on a cumulative basis.
(xi) Issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any securities of the Company or Subsidiary, or rights or obligations convertible into or exchangeable for any securities of the Company or Subsidiary, or alter the terms of any presently outstanding options or make any changes, by split-up, combination, reorganization or otherwise in the capital structure of the Company or Subsidiary.
(xii) Declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock.
(xiii) Grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Parent, or adopt any new severance plan.
(xiv) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock.
(xv) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Company or Subsidiary, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof.
(xvi) Engage in any action that could (1) cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code or (2) interfere with Parent's ability to account for the Merger as a pooling of interests, whether or not (in each case) otherwise permitted by the provisions of this Section 6.2.
(xvii) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement.
(xviii) Make any tax election that, individually or in the aggregate, is reasonably likely to adversely affect in excess any material respect the tax liability or tax attributes of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;or Subsidiary or settle or compromise any material income tax liability.
(xiiixix) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xvii) agree Agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Infocure Corp), Merger Agreement (Medical Dynamics Inc)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except Except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as Agreement, set forth in Section 5.3(c) to the Company Disclosure Schedule, without Schedule or with the prior written consent of Parent Buyer, until such time as Buyer’s designees shall constitute at least seventy-five percent (which consent shall not be unreasonably withheld, delayed or conditioned)75%) of the members of the Board, the Company shall conduct its operations in the ordinary coursecourse consistent with past practice, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees material rights and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect. parties).
(a) Without limiting the generality of the foregoing, during the period from the date of this Agreement to until the earlier of the termination of this Agreement or the Effective TimeAcceptance Date, the Company and each of its Subsidiaries shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) the Company SEC Documents filed prior to the date hereof or the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Buyer:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) except in the ordinary course of business (including in connection with the exercise of Company Options or Restricted Shares), make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock (other than dividends or distributions from a Subsidiary of the Company to the Company or another Subsidiary) or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its the Company capital stock;
(ii) directly make or indirectly sellpropose any changes in its articles of incorporation, transferby-laws or other similar governing documents;
(iii) modify, extend the term or forgive or cancel any outstanding loans owed to the Company or any of its Subsidiaries by any current or former directors, officers, employees consultants or independent contractors of such entities;
(iv) other than in the ordinary course of business, enter into any transaction with any director or executive officer of the Company or any of its Subsidiaries or any immediate family member of any such director or executive officer;
(v) enter into any Company Agreement or any other agreement, commitment or transaction, or agree to enter into any such agreement or transaction, or modify or extend any such agreement or transaction, involving payments by the Company in excess of $250,000 individually or $1,000,000 in the aggregate, including a purchase, sale, lease, pledgeother disposition of assets or capital stock (including securities of Subsidiaries).
(vi) except with respect to joint ventures of other partnerships of the Company in the ordinary course of business consistent with past practice (both in scope and amount), mortgagemake any loans, encumber advances or otherwise dispose of capital contributions to, or investments in, any other Person;
(vii) apply any of its property assets or properties to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable, directly or indirectly, to or for the benefit of any Affiliate or Related Party (as defined below) or enter into any transaction with any Affiliate or Related Party (except for payment of salary and other customary expense reimbursements made in the ordinary course of business to Related Parties who are employees, directors or consultants of the Company or its Subsidiaries);
(viii) grant or make any mortgage or pledge or subject itself or any of its material assets or properties to any material Lien, except Permitted Encumbrances;
(ix) except as required in accordance with GAAP, revalue any of its assets, including writing down the value of its inventory or writing off notes or accounts receivable, other than in the ordinary course of business;
(iiix) amend pursuant to or within the Company Certificate meaning of any bankruptcy law, (A) commence a voluntary case, (B) consent to the entry of an order for relief against it in an involuntary case, (C) consent to the appointment of a custodian of it or for all or substantially all of its property or (D) make a general assignment for the Company Bylawsbenefit of its creditors;
(ivxi) merge or consolidate other than in the ordinary course of business consistent with any other person;
(v) acquire assets or capital stock past practice under existing lines of or other equity interests in any other person;
(vi) credit, incur, create, assume or otherwise become liable for any material indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation Person (other than transactions solely between the Company and one or other entitymore Subsidiaries or between Subsidiaries and the Company);
(viixii) enter into or modify create any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable LawsSubsidiaries;
(viiixiii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle with respect to annual salary increases in the ordinary course of accounting in a manner that is inconsistent business consistent with past practice (both in scope and amount) (A) except to the extent required by generally accepted accounting principles as advised Applicable Law or by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of written agreements existing on the date hereofof this Agreement that have been disclosed or made available to Buyer, would be required to be listed grant or announce any stock option, equity or incentive awards or the increase in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentialitysalaries, standstill bonuses or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than compensation and benefits payable by the Company or any of its subsidiaries)Subsidiaries to any of the employees, officers, directors, consultants, agents, independent contractors or other individual service providers of the Company or any of its Subsidiaries or (B) hire any new employees, except in the ordinary course of business consistent with past practice with respect to employees with an annual base and incentive compensation opportunity not to exceed $150,000, (C) except to the extent required by Applicable Law or by written agreements existing on the date of this Agreement that have been disclosed or made available to Buyer, pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not required by any existing Plan or other agreement or arrangement in effect on the date of this Agreement to any employee, officer, director, consultant, agent, independent contractor or other individual service provider of the Company or any of its Subsidiaries, whether past or present, (D) except to the extent required by Applicable Law or by written agreements existing on the date of this Agreement that have been disclosed or made available to Buyer, enter into or amend any contracts of employment or any consulting, bonus, severance, retention, retirement or similar agreement except for agreements for newly hired employees in the ordinary course of business consistent with past practice with an annual base and incentive compensation opportunity not to exceed $150,000 or (E) except as required to ensure that any Plan is not then out of compliance with Applicable Law, enter into or adopt any new, or materially increase benefits under or renew or amend any existing, Plan or benefit arrangement or any collective bargaining agreement;
(xiixiv) incur change any method, practice or commit principle of financial accounting, except to the extent required by Applicable Laws, GAAP or good financial accounting principles;
(xv) settle any capital expendituresActions, whether now pending or made or brought after the date of this Agreement involving, individually or in the aggregate, an amount in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule$200,000;
(xiiixvi) modify modify, amend or waive terminate, or waive, release or assign any material rights or claims, or fail to exercise a right of its rights under renewal, with respect to, any Company Agreements, any contract relating to the provision of pharmacy products or services, any other material contract to which the Company or a Subsidiary is a party or any confidentiality agreement to which the Company or standstill agreementa Subsidiary is a party;
(xivxvii) enter into make any license change to the terms of technology outside payment or payment practices that, individually or in the aggregate, amounts to a material change to the terms of payment or payment practices with respect to a non-de minimis portion (by dollar value or number of customers or number of suppliers) of the Company’s accounts receivable or accounts payable;
(xviii) incur, make or commit to any material capital expenditures not provided for in the Company’s annual capital expenditures budget, which has been approved by the Board prior to the date of this Agreement;
(xix) fail to use reasonable efforts to collect the Company’s outstanding receivables;
(xx) generate, create or allow any receivables other than in the ordinary and usual course of business consistent with past practicespractice;
(xvxxi) enter into or carry out any other transaction other than with respect to transactions between the Company and its Subsidiaries or between two (2) or more of the Company’s Subsidiaries, make any payments in the ordinary respect of policies of directors’ and usual course of business officers’ liability insurance (premiums or otherwise) other than premiums paid in respect of its current policies not in excess of the amount paid prior to the date of this Agreement and reimbursement for or advancement of routine expenses or renewal policies so long as permitted the amount of insurance is not increased over existing limits;
(xxii) make any payment to, or engage in any transaction with, or guarantee or assume any obligation or indebtedness of, or relieve any obligation to the Company or any of its Subsidiaries of, any Affiliate of the Company, or any affiliate of any such Affiliate of the Company, other than pursuant to Plans (to the other clauses extent permissible in light of clause (xiii) of this Section 5.3(c6.4);
(xvixxiii) permit except as required by Applicable Laws (A) make, revoke or cause amend any subsidiary Tax election or change any Tax accounting method, practice or principle, (B) settle or compromise any claim or assessment with respect to do Taxes, (C) execute any consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any Taxes, or (D) amend any Returns, in each case, in a manner that is materially adverse to the Company and its Subsidiaries, taken as a whole;
(xxiv) apply for any supplemental private letter rulings with respect to the Ruling;
(xxv) other than pursuant to this Agreement, enter into any transaction involving complete or partial liquidation, dissolution, merger, consolidation, joint venture, license agreement, restructuring, recapitalization, reorganization or otherwise alter the corporate structure of the Company or any of its Subsidiaries (other than transactions solely between the foregoing Company and one or agree more of its Subsidiaries or commit to do any between Subsidiaries of the foregoingCompany); or
(xviixxvi) authorize, announce an intention to, commit or agree in writing or otherwise to take any of of, the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the The Company shall conduct its operations in the ordinary coursecourse consistent with past practice, and shall use all commercially reasonable efforts to maintain and preserve its business organization and its material rights and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to maintain all of its operating assets in their current condition (normal wear and tear excepted), to the end that its their goodwill and ongoing business shall not be impaired in any material respectrespect (except as a result of the implementation of FAS142 as required by the Financial Accounting Standards Board). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company and each of its Subsidiaries shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock (other than dividends or distributions from any directly or indirectly wholly-owned subsidiary of the Company to the Company or another directly or indirectly wholly-owned subsidiary of the Company) or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, ; (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement), (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its the Company capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any non-de minimis portion of its property or assets other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend the Company Certificate make or the Company Bylawspropose any changes in its certificate of incorporation, by-laws or other similar governing documents;
(iv) merge or consolidate with any other personPerson or dissolve, liquidate, restructure or otherwise alter the corporate structure of the Company or any of its Subsidiaries;
(v) acquire a material amount of assets or capital stock of or other equity interests in any other personPerson;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individualPerson other than trade payables in the ordinary course of business, corporation or other entityconsistent with past practice;
(vii) create any Subsidiaries;
(viii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than in the ordinary course offer letters of business consistent with past practice with respect to newly hired non-officer employees that provide of the Company (except for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsseverance agreements, which, in all cases, shall require the prior written consent of Parent), or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee employee, except as may be required by Applicable Laws or existing contractual arrangements disclosed to Parent prior to the date hereof, or grant, reprice, or accelerate the exercise or payment of any Company Options or other equity-based awards;
(ix) enter into, adopt or amend any Plan, except as shall be required by Applicable Laws;
(viiix) enter into, adopt or amend take any employee benefit action that could give rise to severance benefits (including payments under any Section 4.15(i) Arrangement) payable to any Person set forth in Section 4.15(i) to the Company Disclosure Schedule (including taking any action that could give rise to a claim of "Good Reason" termination or similar plan except as may be required claim by Applicable Lawsany such Person);
(ixxi) change any material method or principle of accounting in a manner that is inconsistent with past practice Tax or financial accounting, except to the extent required by generally accepted accounting principles Applicable Laws or GAAP as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries)Company's regular independent accountants;
(xii) incur settle any Actions, whether now pending or commit to any capital expendituresmade or brought after the date of this Agreement involving, individually or in the aggregate, an amount in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule$250,000;
(xiii) modify modify, amend or waive terminate, or waive, release or assign any material rights or claims, or fail to exercise a right of its rights under renewal, with respect to, any provision of Company Disclosed Contract, any other material contract to which the Company or a Subsidiary is a party or any confidentiality agreement to which the Company or standstill agreementa Subsidiary is a party;
(xiv) enter into any license of technology outside confidentiality agreements or arrangements other than in the Company’s ordinary and usual course of business consistent with past practicespractice (other than as permitted, in each case, by Section 5.3(d));
(xv) make any change to the terms of payment or payment practices that, individually or in the aggregate, amounts to a material change to the terms of payment or payment practices with respect to a non-de minimis portion (by dollar value or number of customers or number of suppliers) of the Company's accounts receivable or accounts payable;
(xvi) incur, make or commit to any capital expenditures not provided for in the Company's annual capital expenditures budget provided to Parent on or prior to the date of this Agreement;
(xvii) fail to use all commercially reasonable efforts to collect the Company's outstanding receivables;
(xviii) generate, create or allow any receivables other than in the ordinary course of business consistent with past practice;
(xix) other than with respect to transactions between the Company and its directly or indirectly wholly-owned Subsidiaries or between two or more of the Company's directly or indirectly wholly-owned Subsidiaries, make any payments in respect of policies of directors' and officers' liability insurance (premiums or otherwise) other than premiums paid in respect of its current policies not in excess of the amount paid prior to the date of this Agreement;
(xx) make any payment to, or engage in any transaction with, or guarantee or assume any obligation or indebtedness of, or relieve any obligation to the Company or any of its Subsidiaries of, any Affiliate of the Company, or any affiliate of any such Affiliate of the Company, other than pursuant to Plans (to the extent permissible in light of clause (viii) of this Section 5.3(c)) and other than reimbursement for or advancement of routine expenses;
(xxi) incur, make or commit to any fees related to this Agreement and the transactions contemplated hereby (including fees of attorneys, accountants and investment bankers, including regular fees and any success-based fees or fees contingent upon such transactions) such that the aggregate of such fees payable as of the Closing Date or, thereafter, as a result of the Closing exceeds the amounts set forth in Section 4.6 to the Company Disclosure Schedule.
(xxii) enter into or carry out any other material transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c)business;
(xvixxiii) except in the ordinary course of business consistent with past practice (A) make, revoke or amend any material Tax election, (B) settle or compromise any material claim or assessment with respect to Taxes, but only if such settlement or compromise would either individually result in a Tax liability in excess of $250,000 or in combination with all other material Tax claims or assessments settled or compromised since the date of this Agreement result in aggregate Tax liabilities in excess of $250,000, (C) execute any consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes, or (D) amend any material Tax Returns except in connection with the settlement or compromise of a claim or assessment that would not either individually result in a Tax liability in excess of $250,000 or in combination with all other material Tax claims or assessments settled or compromised since the date of this Agreement result in aggregate Tax liabilities in excess of $250,000;
(xxiv) other than pursuant to this Agreement, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries that is inconsistent with the prompt consummation of the transactions contemplated by this Agreement, or could otherwise reasonably be expected to have a Material Adverse Effect on the Company;
(xxv) make any payment or distribution to, on or in respect of, or set aside any funds or establish any "sinking" or similar fund for or in respect of the Notes, whether in respect of interest, repayment of principal or otherwise;
(xxvi) take any action that could reasonably be expected to result in the representations and warranties set forth in Article IV becoming false or inaccurate in any material respect;
(xxvii) permit or cause any subsidiary of its Subsidiaries to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxviii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Omnicare Inc)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except Except (i) as otherwise expressly contemplated required or permitted by this Agreement and the transactions contemplated hereby Agreement, (ii) as required by Applicable Law, (iii) as expressly permitted under this Section 6.2 or as set forth in Section 5.3(c) to 6.2 of the Company Disclosure Schedule, without (iv) for actions taken by KKR Financial Advisors acting pursuant to the terms of the Management Agreement, or (v) with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the Effective Time, the businesses of the Company and its subsidiaries shall in all material respects be conducted only, and the Company and its subsidiaries shall not take any action except in all material respects, in the ordinary course of business and in a manner consistent in all material respects with past practice, and the Company shall conduct its operations in the ordinary course, (and shall cause each of its subsidiaries to) use all commercially reasonable efforts to preserve substantially intact their business organization and maintain and preserve its intact their current business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respectrelationships. Without limiting the generality of Notwithstanding the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, and shall not permit or cause any of its subsidiaries to, except (i) as otherwise expressly contemplated required or permitted by this Agreement and the transactions contemplated hereby or Agreement, (ii) as required by Applicable Law, (iii) as set forth in Section 5.3(c) to 6.2 of the Company Disclosure Schedule, or (iv) for actions taken by KKR Financial Advisors acting pursuant to the terms of the Management Agreement, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed):
(a) amend or otherwise change the Company Certificate of Formation or the Company Operating Agreement;
(b) issue, deliver, sell, grant, pledge, dispose of or xxxxx x Xxxx on, or permit a Lien to exist on, any shares of any class of capital stock of the Company or any of its subsidiaries, any other voting securities or other ownership interests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, voting securities or equity interests, or any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based units or other similar interests of the Company or any of its subsidiaries (except for the issuance of Company Common Shares issuable pursuant to the exercise of Company Options outstanding on the date hereof in accordance with their terms on the date hereof or the crediting of additional Phantom Shares (and issuance of Company Common Shares in settlement thereof) under the Deferred Compensation Plan in accordance with the terms thereof as a result of deferral elections previously made (and not otherwise timely revoked) in respect of 2013 and 2014 compensation in the ordinary course of business, and the dividend reinvestment feature under the Deferred Compensation Plan);
(c) (i) do sell, lease, license, pledge or effect dispose of or (ii) xxxxx x Xxxx on, or permit a Lien to exist on, any properties, investments or other assets or any interests therein of the Company or any of the following actions its subsidiaries that have an aggregate value in excess of $5,000,000;
(d) declare, set aside, make or pay any dividend, payable in cash, equity securities, property or otherwise, with respect to its securities: (A) adjust, split, combine or reclassify any of its capital stock, except for (Bi) makedividends by any of the Company’s direct or indirect wholly-owned subsidiaries to the Company or any of its other wholly-owned subsidiaries and (ii), declare subject to the first sentence of Section 2.3(c), any regular quarterly distribution made by the Company in accordance with its distribution policy in an amount up to $0.22 per Company Common Share for any such quarterly distribution;
(e) adjust, reclassify, combine, split, subdivide or pay any dividend or distribution onredeem, or directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right voting securities or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock ownership interests or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock stock, voting securities or such securities other ownership interests (except pursuant to (1) for the withholding of Company Common Shares in respect of the payment of the exercise price or Taxes upon the exercise of any Company Options which are outstanding as Option, the vesting of restricted shares of Company Common Stock or the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms settlement of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stockPhantom Unit);
(f) (i) acquire, including by merger, consolidation or acquisition of stock or assets or any other business combination or by any other manner, any corporation, partnership, other business organization or any business, division or equity interest thereof; or (ii) directly incur any indebtedness for borrowed money or indirectly sellissue any debt securities or assume, transferguarantee or endorse, lease, pledge, mortgage, encumber or otherwise dispose become responsible for, the obligations of any of its property Person, or assets other than make any loans or advances or capital contribution to, or investment in, any Person, except to employees in the ordinary course of businessbusiness and in a manner consistent with past practice or to the Company or any wholly-owned subsidiary of the Company;
(iiig) amend the Company Certificate modify in any material respect any accounting policies or the Company Bylawsprocedures, other than as required by GAAP or Applicable Law;
(i) make any change (or file any such change) to any material method of Tax accounting, (ii) make, change or rescind any material Tax election; (iii) settle or compromise any material Tax liability or consent to any claim or assessment relating to a material amount of Taxes; (iv) merge or consolidate with file any other personamended Tax Return;
(v) acquire assets file any claim for refund of a material amount of Taxes; (vi) enter into any closing agreement relating to a material amount of Taxes; or capital stock (vii) waive or extend the statute of or other equity interests limitations in any other personrespect of material Taxes;
(vii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable except (1) for the obligations acceleration of the vesting of existing Phantom Shares and restricted Company Common Shares, (2) as required under Section 2.4 or (3) to ensure that any Company Plan is not then out of compliance with Applicable Law or the terms of such Company Plan on the date hereof, (i) adopt, enter into, terminate or amend any Company Plan; (ii) increase in any manner the compensation or benefits of any other individualdirector, corporation officer, employee or other entity;
independent contractor; (viiiii) enter into grant or modify pay any employmentchange-in-control, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increasesretention, severance or termination pay to, or increase in any manner the change-in-control, retention, severance or termination pay of, any current or former director, officer, employee or independent contractor; (iv) grant any equity or equity-based awards or make any loan to any employee or independent contractor (other than the crediting of additional Phantom Shares (and issuance of Company Common Shares in settlement thereof) under the Deferred Compensation Plan in accordance with the terms thereof as a result of deferral elections previously made (and not otherwise timely revoked) in respect of 2013 and 2014 compensation in the ordinary course of business, and the dividend reinvestment feature under the Deferred Compensation Plan); (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Plan; or (vi) hire or terminate any officer, director, consultant employee or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits independent contractor.
(j) except as may be required by Applicable LawsLaw or any judgment by a court of competent jurisdiction and subject to Section 5.7, (i) pay, discharge, settle or otherwise increase satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) that are material to the compensation Company and its subsidiaries, taken as a whole, other than the payment, discharge, settlement or benefits provided to satisfaction in the ordinary course of business and in a manner consistent with past practice of in accordance with their terms, of liabilities disclosed, reflected or reserved against in the financial statements (or the notes thereto) contained in the Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business and in a manner consistent with past practice; (ii) cancel any officer, director, consultant material indebtedness; or employee except as may be required by Applicable Laws(iii) waive or assign any claims or rights of material value;
(viiik) (i) enter into, adopt (ii) terminate or amend any employee benefit or similar plan cancel, except as when it may be required by Applicable Laws;
commercially reasonable to do so, (ixiii) change any method or principle of accounting in fail to exercise a manner that is inconsistent with past practice except right to renew on terms commercially reasonable to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPCompany, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiiiiv) modify or waive amend in any of its rights under material respect, any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoingMaterial Company Contract; or
(xviil) agree in writing or otherwise commit to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from From the date of this Agreement to until the earlier of the Effective TimeTime or the Termination Date, and except (i) as otherwise may be required by Applicable Law, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly contemplated required or permitted by this Agreement and the transactions contemplated hereby or (iv) as set forth in on Section 5.3(c5.3(a) to of the Company Disclosure Schedule, without the Company shall and shall cause each of its subsidiaries to conduct its business and operate its properties in the ordinary course of business consistent with past practice and the Company shall and shall cause each of its subsidiaries to use its reasonable best efforts to preserve intact its business organization and relationships with third parties and to keep available the services of its present key officers and key employees. Without limiting the generality of the foregoing, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), as contemplated by this Agreement or as set forth on Section 5.3(a) of the Company shall conduct its operations in the ordinary courseDisclosure Schedule, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to until the earlier of the termination of this Agreement Effective Time or the Effective TimeTermination Date, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)::
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of its subsidiaries: (A) adjust, split, combine or reclassify the Company’s capital stock or that of its capital stocksubsidiaries, (B) except for dividends or distributions among the Company and its direct or indirect wholly owned subsidiaries or among the Company’s direct or indirect wholly owned subsidiaries, make, declare or pay any dividend or distribution on, or or, directly or indirectly indirectly, redeem, purchase or otherwise acquire, any shares of its the Company’s capital stock or that of its subsidiaries or any securities or obligations convertible into or exchangeable for any shares of the Company’s capital stock or that of its capital stocksubsidiaries, (C) grant any person Person any right or option to acquire any shares of the Company’s capital stock or that of its subsidiaries or any other equity-based compensation award based on shares of the Company’s capital stockstock or that of its subsidiaries, other than not in excess the grant of 50,000 shares up to an aggregate of 25,000 Company Common Stock per employee Options and 250,000 shares the grant of Company Common Stock up to an aggregate of 10,000 Restricted Shares in the aggregateordinary course of business consistent with past practice in accordance with the Company’s customary schedule, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees including customary new hire and shares to be granted under the Company 423 Planpromotion grants, (D) issue, deliver deliver, sell, pledge or sell encumber or agree to issue, deliver deliver, sell, pledge or sell encumber any additional shares of its the Company’s capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its the Company’s capital stock or such securities or the capital stock or such securities of its subsidiaries, other than (except i) as contemplated by clause (C), (ii) issuances of shares of Company Common Stock in the ordinary course of business pursuant to employee stock purchase plans in existence on the date of the Agreement, (1iii) issuances of shares of Company Common Stock in respect of any exercise of Company Options and settlement of any other stock-based award of the Company outstanding on the date of this Agreement or as may be granted after the date of this Agreement as permitted under this Section 5.3(a) and (iv) the sale of shares of Company Common Stock pursuant to the exercise of Company Options which are outstanding as if necessary to effectuate an optionee direction upon exercise or for withholding of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this AgreementTaxes, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of the Company’s capital stock or that of its capital stocksubsidiaries;
(ii) except for transactions among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries, directly or indirectly indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets (including stock or other ownership interests of its subsidiaries and including transfers of project equipment) (collectively, “Company Transfers”), other than (A) Company Transfers in the ordinary course of businessbusiness consistent with past practice, and (B) Company Transfers of property and/or assets at not less than fair market value for consideration not greater than $10,000,000 individually and $20,000,000 in the aggregate;
(iii) amend make or propose any material changes in the Company Company’s Certificate or the Company BylawsCompany’s Bylaws or the organizational documents of any subsidiary;
(iv) merge or consolidate with any other personPerson or adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization;
(v) except for transactions among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries and except in the ordinary course of business consistent with past practice, acquire assets or capital stock of or other equity interests in any other personPerson, other than acquisitions at or below fair market value for consideration not in excess of $10,000,000 individually or $50,000,000 in the aggregate;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business consistent with past practice and except for (u) any performance guarantees by the Company of the obligations of the Company’s subsidiaries or joint ventures, (v) any indebtedness for borrowed money among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries, (w) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness for borrowed money, (x) guarantees by the Company of indebtedness for borrowed money of subsidiaries of the Company, which indebtedness is incurred in compliance with this Section 5.3(a)(vi), (y) indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution of this Agreement and (z) indebtedness for borrowed money in excess of $25,000,000 individually or $50,000,000 in the aggregate principal amount outstanding at any time incurred by the Company or any of its subsidiaries other than in accordance with clauses (v) through (y), inclusive;
(vii) enter into except for transactions in the ordinary course of business consistent with past practice, among the Company and its wholly owned subsidiaries or modify among the Company’s wholly owned subsidiaries, create any employmentsubsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its existing subsidiaries;
(viii) (A) establish, or increase compensation or benefits provided under, any stay bonus, incentive, insurance, severance, stay-put termination termination, change of control, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting or repricing of stock options, stock appreciation rights, performance awards, restricted stock awards or similar agreements instruments), stock purchase or arrangements withother employee benefit plan, program, policy, or grant agreement or arrangement, except (1) for increases to base salary at times, in amounts and otherwise in the ordinary course of business consistent with past practices for employees of the Company and its subsidiaries who are not officers of the Company, (2) severance agreements entered into in the ordinary course of business in connection with terminations of employment with employees of the Company and its subsidiaries who are not executive officers of the Company and (3) the issuance of up to 75,000 Performance Units in the ordinary course of business consistent with past practice in accordance with the Company’s customary schedule, including customary new hire and promotion grants, (B) otherwise increase or accelerate the vesting or payment of the compensation payable or the benefits (including equity awards) provided or to become payable or provided to any bonusesof its current or former directors, salary increasesofficers, severance employees, consultants or termination service providers or those of any of its subsidiaries, or otherwise pay toany amounts not required to be paid to such individual, (C) (1) enter into any new or amend any existing employment or consulting agreement with any executive officer or director of the Company or (2) enter into any new or amend any existing employment or consulting agreement with any director, officer, directoremployee, consultant or employee other than ordinary course offer letters to service provider of the Company or any of its subsidiaries or hire or retain the services of any such director, officer, employee, consultant or service provider if the compensation (base and bonus) of such newly hired employees that provide for employment that is “at will” and which do not or retained Person shall exceed $375,000 per year in the case of any director, officer, employee or service provider or $500,000 per year in the case of any consultant, (D) establish, adopt, amend or enter into any collective bargaining agreement, (E) provide any post termination benefits funding for any rabbi trust or similar arrangement or (F) except as may be required by Applicable LawsGAAP, or otherwise increase the compensation or benefits provided materially change any actuarial assumptions with respect to any officerCompany pension plan, directorexcept in the case of each of clauses (A), consultant or employee except (B), (D), and (E) as may be required to comply with Applicable Law, any Company Benefit Plans or Company Foreign Plans or existing contractual arrangements; provided that the Company may amend its broad-based severance plans to provide that in the event the Company terminates the employment of any Company Employee on or before the first anniversary of the Effective Time because the Company Employee’s position has been eliminated as a result of the Transaction, the Company Employee shall be paid a severance benefit equal to the greater of (1) two weeks of base salary for each year of service, up to a maximum of fifty-two weeks of base salary and (2) six months’ base salary and target short-term incentive, with each of the amounts in (1) and (2) reduced by the amount of any severance benefits or payments in lieu of notice required to be paid to the Company Employee pursuant to any Applicable LawsLaw, and conditioned upon the Company Employee’s delivery and non-revocation of a general release of the Company;
(viiiix) enter into, adopt or amend in any employee benefit manner which would increase costs or similar plan benefits thereunder, any Company Benefit Plan or Company Foreign Plan (or any new arrangement that would constitute a Company Benefit Plan or Company Foreign Plan), except as may shall be required by Applicable LawsLaws or existing contractual arrangements;
(ixx) take any action outside of the ordinary course of business consistent with past practice that could give rise to severance benefits as a result of consummation of any of the Transactions payable to (A) any material group of employees or (B) any officer, director or employee of the Company or any of its subsidiaries that earns in excess of $375,000 per year; provided, however, that this clause (x) shall not limit the Company’s right to pay severance in accordance with Company Benefit Plans and Company Foreign Plans; provided, further, however, that nothing contained in this clause (x) shall permit the Company to amend any Company Benefit Plan or Company Foreign Plan to increase severance payments payable thereunder, except as otherwise permitted pursuant to the terms of this Agreement;
(xi) change any method or principle of accounting in a manner that is inconsistent with past practice financial accounting, except to the extent required by generally accepted accounting principles Applicable Law, Commission rule or policy, or by GAAP as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxii) amendexcept as in the ordinary course consistent with past practice, terminate enter into any new noncompete, exclusivity or modify similar agreement that would restrict or limit, in any Contract listed in Section 3.17 material respect, the operations of the Company Disclosure Schedule or its subsidiaries, or, after the Effective Time, Parent or its subsidiaries;
(xiii) settle or compromise any material Actions (for the absence of doubt, other than Actions relating to Taxes), whether now pending or hereafter made or brought, or waive, release or assign any material rights or claims in an amount greater than $25,000,000 individually or $50,000,000 in the aggregate;
(xiv) (A) enter into any Contract that, if it were fixed-price contract expected to generate revenues in effect as excess of $50,000,000 over the life of the date hereofcontract or (B) modify, would be required to be amend or terminate, or waive, release or assign any material rights or claims with respect to, any Company Material Contract or any contract listed in on Section 3.17 4.23(a) or (b) of the Company Disclosure Schedule;
(xixv) renew, enter into into, amend or waive any confidentiality, standstill material right under any contract with or non-compete agreements or arrangements which after loan to any affiliate of the Effective Time would apply or purport to apply to Parent or any of its subsidiaries Company (other than the Company its direct or any of its indirect wholly owned subsidiaries);
(xiixvi) incur or commit to any corporate capital expenditures, expenditures in excess of $10,000,000 individually or $20,000,000 in the aggregate, ;
(xvii) take any action that would reasonably be expected to result in excess any representation or warranty of the amount Company set forth in Section 5.3(c) to the Company Disclosure ScheduleArticle IV becoming not true;
(xiiixviii) modify except, in each case, as would not result in an increase of $25,000,000 individually or waive $50,000,000 in the aggregate of Taxes of the Company (plus any of its rights under amount reserved therefor) make, revoke or amend any provision of any confidentiality agreement or standstill agreement;
Tax election (xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than except as is in the ordinary and usual course of business or other than consistent with past practice), enter into any closing agreement, settle or compromise any claim or assessment with respect to Taxes, file an amended Tax return, surrender a claim for a refund of Taxes or (except as permitted pursuant is in the ordinary course of business or consistent with past practice) consent to any extension or waiver of the other clauses in this Section 5.3(c)statute of limitations period applicable to any Tax claim or assessment;
(xvixix) take, or knowingly omit to take, any action (including but not limited to any acquisition or entering into any business combination) which is intended to or which could reasonably be expected to adversely affect the ability of any of the parties hereto to perform its covenants and agreements under this Agreement or otherwise prohibit or materially delay consummation of the Transaction or other transactions contemplated by this Agreement;
(xx) permit or cause any subsidiary of its subsidiaries to do any of the foregoing or agree or commit to do any of the foregoingforegoing (it being understood that for purposes of clauses (ii), (v), (vi) and (xvi) of this Section 5.3(a), the aggregate dollar thresholds referred to therein shall be aggregate thresholds for conduct by the Company and its subsidiaries taken as a whole); or
(xviixxi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Washington Group International Inc)
Conduct of the Company’s Operations. During the period from the date hereof until the Closing Date (or the earlier termination of this Agreement Agreement), the Company shall, and shall cause its subsidiaries and divisions to, and the Principals shall (to the Effective Time, extent any such Principal controls the Company or any of the Company’s subsidiaries) conduct operations in the ordinary course except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary courseshall, and shall cause its subsidiaries to, use all reasonable best efforts to maintain and preserve its business organization and to retain the services of its principals, officers and key employees and maintain relationships with customers, suppliers, lessees, licensees customers and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respectimpaired. Without limiting the generality of the foregoing, during the period from the date of this Agreement hereof to the Closing Date (or the earlier of the termination of this Agreement or the Effective TimeAgreement), the Company shall not, and shall not permit its subsidiaries or divisions to, in each case, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in listed on Section 5.3(c5.2(b) to of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):NFP:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or any other securities, (C) grant any person any right or option to acquire any shares of its capital stock, stock or any other than not in excess securities or any registration or similar rights with respect to any of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired its capital stock or promoted employees and shares to be granted under the Company 423 Planother securities, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of the Company Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration repurchase or repurchase redemption of its capital stockstock or any other securities;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than except in the ordinary course of businessbusiness consistent with past practice;
(iii) amend the Company Certificate make or the Company Bylawspropose any changes in its certificate of incorporation or by-laws (or similar organization documents);
(iv) merge or consolidate with any other person;
(v) person or acquire a material amount of assets or capital stock of or other equity interests in any other personperson or enter into any confidentiality agreement with any person with respect to any such transaction;
(viv) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, except for the endorsement of negotiable instruments for collection in the ordinary course of business consistent with past practice;
(vi) create any subsidiaries;
(vii) except in the ordinary course of business consistent with past practice, enter into into, modify or modify amend any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to or adopt, enter into or modify any employee benefit or similar plan with respect to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsemployee, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee employee, except as may be required by Applicable LawsLaw or a binding written contract in effect on the date hereof (and that has been previously disclosed to NFP);
(viii) enter into, adopt modify or amend any employee benefit Affiliate Agreement or similar plan except as may be required by Applicable LawsAffiliate Arrangement;
(ix) except in the ordinary course of business consistent with past practice, change its method of doing business, change any method or principle of accounting for Tax or non-Tax purposes in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPany manner, or make any material Tax election (unless required by law or consistent with prior practice) or settle or compromise any material Tax liability which is the subject of dispute between the Company and a Governmental Authorityor file any amended Tax Return;
(x) amendsettle any Actions, terminate whether now pending or modify hereafter made or brought, involving an amount in excess of $25,000;
(xi) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract listed set forth in Section 3.17 of the Company Disclosure Schedule 3.14 or enter into any Contract that, that would have been required to be disclosed in Schedule 3.14 if it were in effect as of entered into prior to the date hereof, would be required to be listed ;
(xii) waive any rights with a value in excess of $30,000;
(xiii) except as set forth in Section 3.17 5.2(b) of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually obligations or liabilities in respect thereof which in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify aggregate exceeds or waive any of its rights under any provision of any confidentiality agreement or standstill agreementwould exceed $30,000;
(xiv) enter into take any license of technology outside action to exempt or make inapplicable under any state takeover law or state law that purports to limit or restrict business combinations or the Company’s ability to acquire or vote shares, any person (other than NFP or its subsidiaries) or any action taken thereby, which person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(xv) violate or fail to perform any material obligation or duty imposed upon it by any applicable law;
(xvi) make any changes in its sales or marketing practices or procedures other than in the ordinary and usual course consistent with past practice;
(xvii) make any loan, advance (other than loans or advances in the ordinary course of business consistent with past practicespractice) or capital contributions to, or investments in, any other person;
(xvxviii) enter into (A) declare, set aside or carry out pay any dividend or other transaction distribution in respect of the Company Stock or other than equity interests of the Company or any of its subsidiaries, except that the Company shall be entitled to distribute its settlement accounts to the Preferred Holders (B) make loans to any of the affiliates, stockholders or employees of the Company or any of its subsidiaries or (C) directly or indirectly redeem, purchase or otherwise acquire any such Company Stock or other equity interests;
(xix) distribute or disburse the retail settlement proceeds, whether such proceeds are represented by cash or a note;
(xx) request or require any person to accelerate the payment of the accounts receivable of the Company or its subsidiaries except in the ordinary and usual course of business, or factor any accounts receivable of the Company or any of its subsidiaries;
(xxi) defer the payment of the accounts payable of the Company or any of its subsidiaries beyond their current payment practices in the ordinary course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoingconsistent with past practice; or
(xviixxii) agree in writing or otherwise commit to take or grant permission to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (National Financial Partners Corp)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Closing, the Company shall (and the Shareholders shall cause the Company to)
(i) conduct its operations in the ordinary coursecourse except as expressly contemplated by this Agreement, and shall (ii) use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect, and (iii) comply in all material respects with all applicable Laws. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective TimeClosing, the Company shall notnot (and the Shareholders shall cause the Company not to), except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c6.3(a) to of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Buyer:
(i) do or effect any of the following actions with respect to its securitiessecurities of the Company: (A) adjust, split, combine or reclassify its the capital stockstock of the Company, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockthe Company, (C) grant (whether or not for consideration) any person Person any option or other right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value stock of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Planany other Equity Related Right, (D) issue, deliver issue (whether or sell or agree to issue, deliver or sell not for consideration) any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this AgreementCompany, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than sales of products in the ordinary course of businessbusiness in a manner consistent with past practice;
(iii) amend the Company Certificate its articles of organization or the Company Bylawsbylaws;
(iv) merge or consolidate with any other personPerson;
(v) acquire assets (other than purchases of supplies or products in the ordinary course of business in a manner consistent with past practice) or capital stock of or other equity interests in any other personPerson;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, Debt or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entityPerson;
(vii) repay, defease or otherwise retire any Debt of the Company;
(viii) enter into or modify any employment, severance, stay-put pay, termination or similar agreements or arrangements Contracts with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsemployee, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee employee, except as may be required by Applicable Lawsapplicable Law;
(viiiix) enter intointo or adopt any new employee benefit plan, adopt program or other Contract or amend any employee benefit or similar plan Plan except as may be required by Applicable Lawsapplicable Law;
(ixx) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPthe Company's regular independent accountants, or make any material Tax election (unless required by law or consistent with prior practiceapplicable Law) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure ScheduleEntity;
(xi) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract other than in the ordinary course of business consistent with past practices which, individually or in the aggregate, do not have a Material Adverse Effect;
(xii) enter into any confidentiality, standstill or non-compete agreements Contracts under which it is the obligor, or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of existing confidentiality, standstill or non-compete Contract under which it is the beneficiary;
(xiii) incur or commit to incur any confidentiality agreement or standstill agreementcapital expenditures;
(xiv) enter into any license accelerate collection of technology outside accounts receivable, delay payment of accounts payable, or change cash balances of the Company’s Company from the collection, payment, and cash management policies of the Company in the ordinary and usual course of business consistent with past practices;
(xv) enter into take any action that would result in any of the representations and warranties set forth in Article III hereof becoming false or carry out inaccurate in any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c)material respect;
(xvi) permit enter into, amend, terminate or cause waive any subsidiary to do provision of, any of the foregoing Contract with any Related Party or agree or commit to do enter into any of the foregoingnew transaction with any Related Party; or
(xvii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, the Company shall use all reasonable efforts to conduct its operations in the ordinary course, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary coursehereby, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and use all reasonable efforts to maintain relationships with customers, suppliers, lessees, licensees and other third parties to with the end intent that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than the rights or options granted to newly hired or promoted employees, not in excess of 50,000 shares of Company Common Stock per employee and 250,000 300,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plangrant, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.42.5, or (3) the Company’s 's 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other person;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(vii) except as set forth in Section 5.3(c)(vii) of the Company Disclosure Schedule, enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “"at will” " and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;
(viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers Deloitte & Touche LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixv) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixvi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from Between the date of this Agreement to and the Effective Time, Time and the Company shall conduct its business and operations in the ordinary course except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, Transactions and shall use all its reasonable best efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to the end that maintain all of its goodwill operating assets in their current condition (normal wear and ongoing business shall not be impaired in any material respecttear excepted). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as required by Applicable Law, as otherwise expressly contemplated or permitted by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c6.3(c) to of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed):
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value stock (except grants of the Company Common Stock on the date of grant for grants Options to newly hired or promoted employees and shares to be granted under the Company 423 Planemployees in the ordinary course of business consistent with past practices provided that the Company shall consult with Parent prior to making any such grants or making any recommendation to the Company Board with respect to such grants), (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of the Company Stock Options which that are outstanding as of the date hereof hereof), (E) adopt a plan of complete or which are granted by partial liquidation or dissolution or resolution providing for or authorizing such liquidation or dissolution, (F) repurchase, redeem or otherwise acquire any shares of capital stock of the Company prior or any other securities thereof or any rights, warrants or options to the Effective Time in compliance with the terms of this Agreementacquire any such shares or other securities, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend make or propose any changes in the Company Certificate Company’s Articles or the Company Company’s Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other personperson outside of the ordinary course of business consistent with past practice in an amount in excess of $200,000;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business, consistent with past practice or pay, discharge or satisfy any claims, liabilities or obligations other than in the ordinary course of business or as reflected or reserved against in the most recent financial statements;
(vii) create any subsidiaries;
(viii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than in the ordinary course offer letters of business consistent with past practice with respect to newly hired non-officer employees that provide (except for employment that is “at will” and severance or change in control agreements, which do not provide any post termination benefits in all cases shall require the prior written consent of Parent), except as may be required by Applicable Laws, for bonuses disclosed in Section 5.15(l) of the Company Disclosure Schedule or otherwise increase the compensation or benefits provided to any present or former officer, director, consultant or employee except as may be required by Applicable LawsLaw, or grant, or reprice the exercise or payment of any of the Company Stock Options or other equity-based awards (except for grants to the extent permitted by Section 6.3(c)(i));
(viiiix) enter into, adopt or amend any employee benefit or similar plan Plan, except as may be required by Applicable LawsLaw;
(ixx) take any action that could give rise to severance benefits payable to any officer or director of the Company as a result of consummation of the Transactions;
(xi) change any method or principle of accounting in a manner that is inconsistent with past practice practice, except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxii) amendsettle any Actions, terminate whether now pending or modify hereafter made or brought involving, individually or in the aggregate, an amount in excess of $200,000;
(xiii) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract listed set forth in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 5.16 of the Company Disclosure Schedule;
(xixiv) enter into any confidentiality, standstill or non-compete confidentiality agreements or arrangements which after other than in the Effective Time would apply or purport to apply to Parent or any ordinary course of its subsidiaries business consistent with past practice (other than as permitted, in each case, by Section 6.3(e));
(xv) incur, authorize or commit to any capital expenditures in excess of the amount incurred in accordance with prior practice;
(xvi) permit any material insurance policy naming the Company or any of its subsidiariessubsidiaries as a beneficiary or a loss payee to be canceled or terminated, except in the ordinary course of business;
(xvii) take any affirmative action to exempt or cause to be inapplicable as to any individual or entity (other than Parent or its Affiliates) (i) the provisions of Section 607.0901 or Section 607.0902 of the FBCA or (ii) any other state takeover Applicable Law that purports to limit or restrict business combinations or the ability to acquire or vote shares, except in order to enter into or execute a definitive agreement with respect to a Superior Proposal as expressly permitted by Section 6.3(e);
(xiixviii) incur enter into or commit to modify (i) any capital expenditures, individually material service Contract that has a term greater than 12 months or in the aggregate, in excess of the amount (ii) any service Contract set forth in Section 5.3(c6.3(c)(xviii) to of the Company Disclosure Schedule;
(xiiixix) enter into or modify (i) any material Contract for real property, as lessor or waive lessee, that has a term greater than 12 months or (ii) any Contract for real estate, as lessor or lessee, set forth in Section 6.3(c)(xvix) of its rights under any provision of any confidentiality agreement or standstill agreementthe Company Disclosure Schedule;
(xivxx) enter into any license transaction with any of technology outside its Affiliates other than pursuant to arrangements in effect on the Company’s ordinary and usual course of business consistent with past practicesdate hereof or as required by Applicable Laws;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixxi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by Time or the date of termination of this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)Agreement, the Company shall conduct use its operations in the ordinary course, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees suppliers and other third parties to the end that its their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedulehereby, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):ISI:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sellSell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its personal property or assets other than sales or leases of inventory or licensing of Intellectual Property Assets made in the ordinary course of business;.
(ii) Make or propose any changes in its Articles of Incorporation or Bylaws.
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge Merge or consolidate with any other person;
(v) person or acquire a material amount of assets or capital stock of or other equity interests in any other person;person or enter into any confidentiality agreement with any person other than in the Ordinary Course of Business.
(viiv) Other than for normal borrowings in the Ordinary Course of Business under the Company's existing working capital credit facility, incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;, except in the Ordinary Course of Business.
(viiv) enter Create any subsidiaries.
(vi) Enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than salary increases granted in the ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;of business.
(viiivii) enter into, adopt Change its method of doing business or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any material method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPpractice.
(viii) Settle any Proceeding, whether now pending or hereafter made or brought involving an amount in excess of Ten Thousand and No/100 Dollars ($10,000.00).
(ix) Modify, amend or terminate, or make waive, release or assign any material Tax election (unless required by law rights or consistent claims with prior practice) or settle respect to, any material Tax liability Contract to which is the subject of dispute between the Company and is a Governmental Authority;party or any confidentiality agreement to which the Company is a party.
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur Incur or commit to any capital expenditures, individually obligations or liabilities in respect thereof which in the aggregateaggregate exceed or would exceed Ten Thousand and No/100 Dollars ($10,000.00) on a cumulative basis.
(xi) Issue, in excess sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any securities of the amount Company, or rights or obligations convertible into or exchangeable for any securities of the Company, or alter the terms of any presently outstanding options or make any changes, by split-up, combination, reorganization or otherwise in the capital structure of the Company.
(xii) Declare, set forth in Section 5.3(c) aside or pay any dividend or make any other distribution or payment with respect to the Company Disclosure Schedule;any shares of its capital stock.
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xvii) agree Agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Infocure Corp)
Conduct of the Company’s Operations. During the period from Between the date of this Agreement to and the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, course except as expressly contemplated by this Agreement and the Transactions and shall use all its reasonable best efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to the end that maintain all of its goodwill operating assets in their current condition (normal wear and ongoing business shall not be impaired in any material respecttear excepted). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as required by Applicable Law, as otherwise expressly contemplated or permitted by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c6.3(c) to of the Company Disclosure Schedule, without the prior written consent of Parent (Parent, which consent shall not be unreasonably withheld, withheld or delayed (the parties acknowledging that any act or conditionedtransaction referred to in the definition of “Acquisition Proposal” in Section 6.3(e) will be governed by Section 6.3(e) and not this Section 6.3(c)):
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value stock (except grants of the Company Common Stock on the date of grant for grants Options to newly hired or promoted employees and shares to be granted under the Company 423 Planemployees in the ordinary course of business consistent with past practice provided that the Company shall consult with Parent prior to making any such grants or making any recommendation to the Company Board with respect to such grants), (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of the Company Stock Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreementhereof), (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, license, pledge, mortgage, encumber encumber, subject to any lien or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend make or propose any changes in the Company Company’s Certificate or the Company Company’s Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other personperson outside of the ordinary course of business consistent with past practice in an amount in excess of $100,000;
(vi) adopt or enter into a plan of complete and partial liquidation, dissolution, restructuring or recapitalization or other reorganization of the Company or any of its subsidiaries;
(vii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than for working capital and non-recurring engineering development costs in the ordinary course of business, consistent with past practice and in an amount not to exceed in the aggregate $500,000, measured as a trailing ten-business day average, and not to exceed $1,000,000 in the aggregate at any one time, or pay, discharge or satisfy any claims, liabilities or obligations other than in the ordinary course of business or as reflected or reserved against in the most recent financial statements;
(viiviii) create any subsidiaries or directly or indirectly sell, transfer, lease, pledge, mortgage, encumber, subject to any lien or otherwise dispose of any capital stock or other equity interests in existing subsidiaries;
(ix) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than to non-officer employees in the ordinary course offer letters to newly hired employees that provide of business consistent with past practice (except for employment that is “at will” and severance agreements, which do not provide any post termination benefits in all cases shall require the prior written consent of Parent), except as may be required by Applicable Laws, for bonuses disclosed in Section 5.16(m) of the Company Disclosure Schedule or otherwise increase the compensation or benefits provided to any present or former officer, director, consultant or employee except as may be required by Applicable LawsLaw, or grant, or reprice the exercise or payment of any of the Company Stock Options or other equity-based awards (except for grants to the extent permitted by Section 6.3(c)(i));
(viiix) enter into, adopt or amend any employee benefit or similar plan Plan, except as may be required by Applicable LawsLaw;
(ixxi) take any action that could give rise to severance benefits payable to any officer, director or employee of the Company as a result of consummation of the Transactions;
(xii) change any method or principle of accounting in a manner that is inconsistent with past practice practice, except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxiii) amendmodify, terminate amend or modify terminate, or waive, release or assign any material rights or claims with respect to, any Material Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, contract that would be required to be listed a Material Contract other than in Section 3.17 the ordinary course of the Company Disclosure Schedulebusiness consistent with past practice;
(xixiv) modify, amend, terminate, release, assign, or fail to renew or maintain in effect any Company Permits other than in the ordinary course of business consistent with past practice;
(xv) enter into any confidentiality, standstill or non-compete confidentiality agreements or arrangements which after other than in the Effective Time would apply ordinary course of business consistent with past practice (other than as permitted, in each case, by Section 6.3(e));
(xvi) incur, authorize or purport commit to apply to Parent any capital expenditures in excess of $50,000 individually or $175,000 in the aggregate;
(xvii) permit any material insurance policy naming the Company or any of its subsidiaries as a beneficiary or a loss payee to be canceled or terminated, except in the ordinary course of business;
(xviii) commence or settle any Action other than commencement of any Action in the ordinary course of business or settlement of any Action (a) for monetary of payment of less than $50,000 individually and $150,000 in the aggregate and (b) that does not impose any material restriction or obligation on the Company or any of its subsidiaries);
(xiixix) incur loan or commit to advance any capital expendituresmoney or other property to, or enter into any transaction with, any equity holder, affiliate or current or former director or officer of the Company or any of its subsidiaries;
(xx) write down or write off the book value of any assets, individually or in the aggregate, in excess of $50,000, except for depreciation and amortization in accordance with GAAP, or write up the amount set forth in Section 5.3(c) to the Company Disclosure Schedulebook value of any assets;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixxi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plan, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 's 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other person;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(vii) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “"at will” " and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;
(viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s 's ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xvii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Xicor Inc)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct its operations in the ordinary course except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, and shall use all its reasonable efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees suppliers and other third parties to the end that its their goodwill and ongoing business shall not be impaired in any material respect. The Company shall confer at such times as Parent may reasonably request with one or more representatives of Parent to report material operational matters and the general status of on-going operations (to the extent Parent reasonably requires such information). Furthermore, the Company shall notify Parent of any emergency or other change in the normal course of its or its subsidiaries respective businesses or in the operation of its or its subsidiaries respective properties and of any complaints, investigations or hearings (or communications that threaten the same) of any governmental body or authority if such emergency, charge, complaint, investigation or hearing would have a material adverse effect on the Company. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time or the earlier of the termination of this Agreement or the Effective Timepursuant to Section 7.1, the Company shall not, and shall cause its subsidiaries to not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedulehereby, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of any of its subsidiaries: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stocksecurities, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plansecurities, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of outstanding options to purchase Company Options which are outstanding as of Common Stock or the date hereof Suddxxx Xxxrant) or which are granted by the Company prior to the Effective Time in compliance with amend the terms of this Agreementany of its securities, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration sale or repurchase voting of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets which are material, in the aggregate, other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend the Company Certificate make or the Company propose any changes in its Restated Articles of Incorporation, as amended, or Bylaws, or other organizational documents;
(iv) merge or consolidate with any other person;
(v) person or acquire a material amount of assets or capital stock of or other equity interests in any other person;person or enter into any confidentiality agreement with any person except in the circumstances permitted in Section 5.3(b) below, other than in connection with this Agreement and the transactions contemplated hereby; 39
(viv) incur, create, assume or otherwise become liable for any indebtedness for borrowed money ormoney, other than in the ordinary course of business consistent with past practice, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business consistent with past practice;
(viivi) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than salary increases and bonuses granted to employees who are not officers or directors in the ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsof business consistent with past practice, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable LawsLaw, this Agreement, any applicable collective bargaining agreement or a binding written contract in effect on the date of this Agreement, or adopt any new employee benefit plan (or grant any options or awards thereunder);
(viiivii) enter into, adopt change its method of doing business or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle of accounting in a manner that is inconsistent with past practice practice;
(viii) settle any actions or claims, whether now pending or hereafter made or brought, involving an amount in excess of $25,000;
(ix) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Company Contract to which the Company is a party or any confidentiality agreement to which the Company is a party (except in the case of a confidentiality agreement to the extent required permitted by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPSection 5.3(b) below), or make enter into any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the new Company and a Governmental AuthorityContract;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually obligations or liabilities in respect thereof or any acquisitions of any other business or any material portion thereof, other than in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practicespractice;
(xvxi) enter into subject to the terms of Section 5.3(b) of this Agreement, conduct its business in a manner or carry out take, or cause to be taken, any other transaction action that could reasonably be expected to prevent or materially delay the Company from consummating the transactions contemplated by this Agreement (regardless of whether such action would otherwise be permitted or not prohibited hereunder), including without limitation, any action that may materially limit or delay the ability of the Company to consummate the transactions contemplated by this Agreement as a result of antitrust or securities laws or other regulatory concerns;
(xii) make any material tax election or settle or compromise any material tax liability, other than in connection with currently pending proceedings or other than in the ordinary and usual course of business;
(xiii) 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 in the ordinary course of business and consistent with past practice of liabilities reflected or other than as permitted pursuant reserved against in the financial statements contained in the Company SEC Reports filed prior to the other clauses date of this Agreement or incurred in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any the ordinary course of the foregoing or agree or commit to do any of the foregoingbusiness and consistent with past practice; or
(xviixiv) agree in writing or otherwise to take any of action prohibited by the foregoing actionsforegoing.
Appears in 1 contract
Samples: Merger Agreement (Belmont Homes Inc)
Conduct of the Company’s Operations. During the period from From the date of this Agreement to until the earlier of the Effective TimeTime or the Termination Date, and except (i) as otherwise may be required by Applicable Law, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly contemplated 44 required or permitted by this Agreement and the transactions contemplated hereby or (iv) as set forth in on Section 5.3(c5.3(a) to of the Company Disclosure Schedule, without the Company shall and shall cause each of its subsidiaries to conduct its business and operate its properties in the ordinary course of business consistent with past practice and the Company shall and shall cause each of its subsidiaries to use its reasonable best efforts to preserve intact its business organization and relationships with third parties and to keep available the services of its present key officers and key employees. Without limiting the generality of the foregoing, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), as contemplated by this Agreement or as set forth on Section 5.3(a) of the Company shall conduct its operations in the ordinary courseDisclosure Schedule, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to until the earlier of the termination of this Agreement Effective Time or the Effective TimeTermination Date, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)::
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of its subsidiaries: (A) adjust, split, combine or reclassify the Company’s capital stock or that of its capital stocksubsidiaries, (B) except for dividends or distributions among the Company and its direct or indirect wholly owned subsidiaries or among the Company’s direct or indirect wholly owned subsidiaries, make, declare or pay any dividend or distribution on, or or, directly or indirectly indirectly, redeem, purchase or otherwise acquire, any shares of its the Company’s capital stock or that of its subsidiaries or any securities or obligations convertible into or exchangeable for any shares of the Company’s capital stock or that of its capital stocksubsidiaries, (C) grant any person Person any right or option to acquire any shares of the Company’s capital stock or that of its subsidiaries or any other equity-based compensation award based on shares of the Company’s capital stockstock or that of its subsidiaries, other than not in excess the grant of 50,000 shares up to an aggregate of 25,000 Company Common Stock per employee Options and 250,000 shares the grant of Company Common Stock up to an aggregate of 10,000 Restricted Shares in the aggregateordinary course of business consistent with past practice in accordance with the Company’s customary schedule, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees including customary new hire and shares to be granted under the Company 423 Planpromotion grants, (D) issue, deliver deliver, sell, pledge or sell encumber or agree to issue, deliver deliver, sell, pledge or sell encumber any additional shares of its the Company’s capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its the Company’s capital stock or such securities or the capital stock or such securities of its subsidiaries, other than (except i) as contemplated by clause (C), (ii) issuances of shares of Company Common Stock in the ordinary course of business pursuant to employee stock purchase plans in existence on the date of the Agreement, (1iii) issuances of shares of Company Common Stock in respect of any exercise of Company Options and settlement of any other stock-based award of the Company outstanding on the date of this Agreement or as may be granted after the date of this Agreement as permitted under this Section 5.3(a) and (iv) the sale of shares of Company Common Stock pursuant to the exercise of Company Options which are outstanding as if necessary to effectuate an optionee direction upon exercise or for withholding of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this AgreementTaxes, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of the Company’s capital stock or that of its capital stocksubsidiaries;
(ii) except for transactions among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries, directly or indirectly indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets (including stock or other ownership interests of its subsidiaries and including transfers of project equipment) (collectively, “Company Transfers”), other than (A) Company Transfers in the ordinary course of businessbusiness consistent with past practice, and (B) Company Transfers of property and/or assets at not less than fair market value for consideration not greater than $10,000,000 individually and $20,000,000 in the aggregate;
(iii) amend make or propose any material changes in the Company Company’s Certificate or the Company BylawsCompany’s Bylaws or the organizational documents of any subsidiary;
(iv) merge or consolidate with any other personPerson or adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization;
(v) except for transactions among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries and except in the ordinary course of business consistent with past practice, acquire assets or capital stock of or other equity interests in any other personPerson, other than acquisitions at or below fair market value for consideration not in excess of $10,000,000 individually or $50,000,000 in the aggregate;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business consistent with past 45 practice and except for (u) any performance guarantees by the Company of the obligations of the Company’s subsidiaries or joint ventures, (v) any indebtedness for borrowed money among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries, (w) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness for borrowed money, (x) guarantees by the Company of indebtedness for borrowed money of subsidiaries of the Company, which indebtedness is incurred in compliance with this Section 5.3(a)(vi), (y) indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution of this Agreement and (z) indebtedness for borrowed money in excess of $25,000,000 individually or $50,000,000 in the aggregate principal amount outstanding at any time incurred by the Company or any of its subsidiaries other than in accordance with clauses (v) through (y), inclusive;
(vii) enter into except for transactions in the ordinary course of business consistent with past practice, among the Company and its wholly owned subsidiaries or modify among the Company’s wholly owned subsidiaries, create any employmentsubsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its existing subsidiaries;
(viii) (A) establish, or increase compensation or benefits provided under, any stay bonus, incentive, insurance, severance, stay-put termination termination, change of control, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting or repricing of stock options, stock appreciation rights, performance awards, restricted stock awards or similar agreements instruments), stock purchase or arrangements withother employee benefit plan, program, policy, or grant agreement or arrangement, except (1) for increases to base salary at times, in amounts and otherwise in the ordinary course of business consistent with past practices for employees of the Company and its subsidiaries who are not officers of the Company, (2) severance agreements entered into in the ordinary course of business in connection with terminations of employment with employees of the Company and its subsidiaries who are not executive officers of the Company and (3) the issuance of up to 75,000 Performance Units in the ordinary course of business consistent with past practice in accordance with the Company’s customary schedule, including customary new hire and promotion grants, (B) otherwise increase or accelerate the vesting or payment of the compensation payable or the benefits (including equity awards) provided or to become payable or provided to any bonusesof its current or former directors, salary increasesofficers, severance employees, consultants or termination service providers or those of any of its subsidiaries, or otherwise pay toany amounts not required to be paid to such individual, (C) (1) enter into any new or amend any existing employment or consulting agreement with any executive officer or director of the Company or (2) enter into any new or amend any existing employment or consulting agreement with any director, officer, directoremployee, consultant or employee other than ordinary course offer letters to service provider of the Company or any of its subsidiaries or hire or retain the services of any such director, officer, employee, consultant or service provider if the compensation (base and bonus) of such newly hired employees that provide for employment that is “at will” and which do not or retained Person shall exceed $375,000 per year in the case of any director, officer, employee or service provider or $500,000 per year in the case of any consultant, (D) establish, adopt, amend or enter into any collective bargaining agreement, (E) provide any post termination benefits funding for any rabbi trust or similar arrangement or (F) except as may be required by Applicable LawsGAAP, or otherwise increase the compensation or benefits provided materially change any actuarial assumptions with respect to any officerCompany pension plan, directorexcept in the case of each of clauses (A), consultant or employee except (B), (D), and (E) as may be required to comply with Applicable Law, any Company Benefit Plans or Company Foreign Plans or existing contractual arrangements; provided that the Company may amend its broad-based severance plans to provide that in the event the Company terminates the employment of any Company Employee on or before the first anniversary of the Effective Time because the Company Employee’s position has been eliminated as a result of the Transaction, the Company Employee shall be paid a severance benefit equal to the greater of (1) two weeks of base salary for each year of service, up to a maximum of fifty-two weeks of base salary and (2) six months’ base salary and target short-term incentive, with each of the amounts in (1) and (2) reduced by the amount of any severance benefits or payments in lieu of notice required to be paid to the Company Employee pursuant to any Applicable LawsLaw, and conditioned upon the Company Employee’s delivery and non-revocation of a general release of the Company;
(viiiix) enter into, adopt or amend in any employee benefit manner which would increase costs or similar plan benefits thereunder, any Company Benefit Plan or Company Foreign Plan (or any new arrangement that would constitute a Company Benefit Plan or Company Foreign Plan), except as may shall be required by Applicable LawsLaws or existing contractual arrangements; 46
(x) take any action outside of the ordinary course of business consistent with past practice that could give rise to severance benefits as a result of consummation of any of the Transactions payable to (A) any material group of employees or (B) any officer, director or employee of the Company or any of its subsidiaries that earns in excess of $375,000 per year; provided, however, that this clause (x) shall not limit the Company’s right to pay severance in accordance with Company Benefit Plans and Company Foreign Plans; provided, further, however, that nothing contained in this clause (x) shall permit the Company to amend any Company Benefit Plan or Company Foreign Plan to increase severance payments payable thereunder, except as otherwise permitted pursuant to the terms of this Agreement;
(ixxi) change any method or principle of accounting in a manner that is inconsistent with past practice financial accounting, except to the extent required by generally accepted accounting principles Applicable Law, Commission rule or policy, or by GAAP as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxii) amendexcept as in the ordinary course consistent with past practice, terminate enter into any new noncompete, exclusivity or modify similar agreement that would restrict or limit, in any Contract listed in Section 3.17 material respect, the operations of the Company Disclosure Schedule or its subsidiaries, or, after the Effective Time, Parent or its subsidiaries;
(xiii) settle or compromise any material Actions (for the absence of doubt, other than Actions relating to Taxes), whether now pending or hereafter made or brought, or waive, release or assign any material rights or claims in an amount greater than $25,000,000 individually or $50,000,000 in the aggregate;
(xiv) (A) enter into any Contract that, if it were fixed-price contract expected to generate revenues in effect as excess of $50,000,000 over the life of the date hereofcontract or (B) modify, would be required to be amend or terminate, or waive, release or assign any material rights or claims with respect to, any Company Material Contract or any contract listed in on Section 3.17 4.23(a) or (b) of the Company Disclosure Schedule;
(xixv) renew, enter into into, amend or waive any confidentiality, standstill material right under any contract with or non-compete agreements or arrangements which after loan to any affiliate of the Effective Time would apply or purport to apply to Parent or any of its subsidiaries Company (other than the Company its direct or any of its indirect wholly owned subsidiaries);
(xiixvi) incur or commit to any corporate capital expenditures, expenditures in excess of $10,000,000 individually or $20,000,000 in the aggregate, ;
(xvii) take any action that would reasonably be expected to result in excess any representation or warranty of the amount Company set forth in Section 5.3(c) to the Company Disclosure ScheduleArticle IV becoming not true;
(xiiixviii) modify except, in each case, as would not result in an increase of $25,000,000 individually or waive $50,000,000 in the aggregate of Taxes of the Company (plus any of its rights under amount reserved therefor) make, revoke or amend any provision of any confidentiality agreement or standstill agreement;
Tax election (xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than except as is in the ordinary and usual course of business or other than consistent with past practice), enter into any closing agreement, settle or compromise any claim or assessment with respect to Taxes, file an amended Tax return, surrender a claim for a refund of Taxes or (except as permitted pursuant is in the ordinary course of business or consistent with past practice) consent to any extension or waiver of the other clauses in this Section 5.3(c)statute of limitations period applicable to any Tax claim or assessment;
(xvixix) take, or knowingly omit to take, any action (including but not limited to any acquisition or entering into any business combination) which is intended to or which could reasonably be expected to adversely affect the ability of any of the parties hereto to perform its covenants and agreements under this Agreement or otherwise prohibit or materially delay consummation of the Transaction or other transactions contemplated by this Agreement;
(xx) permit or cause any subsidiary of its subsidiaries to do any of the foregoing or agree or commit to do any of the foregoingforegoing (it being understood that for purposes of clauses (ii), (v), (vi) and (xvi) of this Section 5.3(a), the aggregate dollar thresholds referred to therein shall be aggregate thresholds for conduct by the Company and its subsidiaries taken as a whole); or
(xviixxi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Urs Corp /New/)
Conduct of the Company’s Operations. During Except as expressly contemplated by this Agreement, as required by Applicable Law or as expressly permitted by or disclosed in Section 6.3(a) of the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Appointment Time, except as unless Parent otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)consents, the Company shall, and shall cause its subsidiaries to, conduct its operations in the ordinary coursecourse in substantially the same manner as previously conducted, and and, consistent with the terms of this Section 6.3(a), shall use all reasonable best efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to maintain all of its operating assets in their current condition (normal wear and tear excepted), to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Appointment Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby Agreement, as required by Applicable Law or as set forth expressly permitted by or disclosed in Section 5.3(c6.3(a) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of its subsidiaries: (A) adjust, split, combine or reclassify the Company capital stock or that of its capital stocksubsidiaries, (B) make, declare or pay any dividend or distribution on, or or, directly or indirectly indirectly, redeem, purchase or otherwise acquire, any shares of its Company capital stock or that of its subsidiaries or any securities or obligations convertible into or exchangeable for any shares of Company capital stock or that of its capital stocksubsidiaries, other than dividends or distributions by any wholly owned subsidiaries of the Company to the Company or to a wholly owned, United States-based subsidiary of the Company, (C) grant any person any right or option to acquire any shares of Company capital stock or that of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plansubsidiaries, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its Company capital stock stock, Voting Company Debt or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its the Company capital stock stock, Voting Company Debt or such securities (except pursuant to (1) the exercise of Company the Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement) or the capital stock or such securities of its subsidiaries, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of Company capital stock or that of its capital stocksubsidiaries;
(ii) directly or indirectly indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets having a value exceeding $100,000 individually or $250,000 in the aggregate other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend make or propose any changes in the Company Certificate Articles or the Company BylawsBy-laws or the comparable organizational documents of its subsidiaries;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other personperson other than the acquisition of assets in the ordinary course of business consistent with past practice;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individualperson, corporation or other entitythan in the ordinary course of business consistent with past practice, and not, in any case, in an amount in excess of $50,000;
(vii) create any subsidiaries;
(viii) enter into into, amend or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay topay, to any officerofficer or director, directoror, except for salary increases in the ordinary course of business consistent with past practice, consultant or employee employee, other than with respect to the termination of employment of any person in the ordinary course offer letters of business consistent with past practice with respect to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsnon-officer employees, or otherwise increase the compensation or benefits provided to to, or pay any officeramounts not otherwise due to, any officer or director, or, except in the ordinary course of business consistent with past practice, any consultant or employee employee, except as may be required by Applicable Laws or agreements existing on the date of this Agreement, or grant, reprice, or accelerate the exercise or payment of any the Options or other equity-based awards;
(ix) enter into, adopt or amend any Plan (or any new arrangement that would constitute a Plan), except as shall be required by Applicable Laws;
(viiix) enter into, adopt take any action that could give rise to severance benefits payable to any officer or amend director of the Company as a result of the consummation of any employee benefit or similar plan except as may be required of the transactions contemplated by Applicable Lawsthis Agreement (including in connection with any post-consummation termination of employment);
(ixxi) change any method or principle of accounting in a manner that is inconsistent with past practice Tax or financial accounting, except to the extent required by generally accepted accounting principles GAAP or Applicable Law as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries)Company’s regular independent accountants;
(xii) incur make any material changes or commit modifications to any capital expenditurespricing policy or investment policy or any method of doing business;
(xiii) settle any Actions, whether now pending or hereafter made or brought involving, individually or in the aggregate, an amount in excess of the amount $100,000;
(xiv) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any Contract required to be set forth in Section 5.3(c) 5.16 to the Company Disclosure Schedule;
(xiiixv) modify enter into, amend or terminate any confidentiality agreements, standstill agreements or similar arrangements or waive any of its rights provisions under any provision of any existing confidentiality agreement, standstill agreement or standstill agreementsimilar arrangements (other than as expressly permitted by Section 6.3(b)), provided that in connection with the consideration of business opportunities in the ordinary course of business, the Company may enter into confidentiality agreements consistent with past practice containing customary terms and conditions;
(xivxvi) enter into write up, write down or write off the book value of any license assets, except as required by GAAP consistently applied or as required by Applicable Law;
(xvii) incur or commit to any capital expenditures in excess of technology outside $1,250,000 in the aggregate provided, that such expenditures are incurred or committed in a manner generally consistent with the Company’s ordinary and usual course existing capital expenditure plan, a copy of business consistent with past practiceswhich has been furnished to Parent;
(xvxviii) make any payments in respect of policies of directors’ and officers’ liability insurance (premiums or otherwise), other than premiums paid in respect of its current policies not in excess of the amount paid prior to the date of this Agreement;
(xix) take any action to exempt or make not subject to (A) the provisions of Article 13.03 of the TBCA or (B) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any person (other than Parent or its subsidiaries), or any action, which person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(xx) take any action that would reasonably be likely to result in (A) any representation or warranty of the Company set forth in Article V becoming not true or not accurate in any material respect or (B) any condition precedent to the Offer (as set forth in Annex A) or any condition to the Merger set forth in Article VII not being satisfied;
(xxi) enter into or carry out any other transaction other than in the ordinary and usual course of business or (other than as expressly permitted pursuant to the other clauses in this by Section 5.3(c6.3(b));
(xvixxii) make, revoke or amend any Tax election (other than in the ordinary course), settle or compromise any material claim or assessment with respect to Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any Taxes or amend any Tax Returns;
(xxiii) permit or cause any subsidiary of its subsidiaries to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxiv) agree (whether or not in writing or otherwise writing) to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Amx Corp /Tx/)
Conduct of the Company’s Operations. During the period from the date of this Agreement to the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct its operations in the ordinary course except as otherwise expressly contemplated by this is Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary course, and shall use all its reasonable efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees suppliers and other third parties to the end that its their goodwill and ongoing business shall not be impaired in any material respect. The Company shall confer at such times as Parent may reasonably request with one or more representatives of Parent to report material operational matters and the general status of on-going operations (to the extent Parent reasonably requires such information). Furthermore, the Company shall notify Parent of any emergency or other change in the normal course of its or its subsidiaries respective businesses or in the operation of its or its subsidiaries respective properties and of any complaints, investigations or hearings (or communications that threaten the same) of any governmental body or authority if such emergency, charge, complaint, investigation or hearing would have a material adverse effect on the Company. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time or the earlier of the termination of this Agreement or the Effective Timepursuant to Section 7.1, the Company shall not, and shall cause its subsidiaries to not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedulehereby, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of any of its subsidiaries: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stocksecurities, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plansecurities, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of outstanding options to purchase Company Options which are outstanding as of Common Stock or the date hereof Xxxxxxx Warrant) or which are granted by the Company prior to the Effective Time in compliance with amend the terms of this Agreementany of its securities, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration sale or repurchase voting of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets which are material, in the aggregate, other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend the Company Certificate make or the Company propose any changes in its Restated Articles of Incorporation, as amended, or Bylaws, or other organizational documents;
(iv) merge or consolidate with any other person;
(v) person or acquire a material amount of assets or capital stock of or other equity interests in any other personperson or enter into any confidentiality agreement with any person except in the circumstances permitted in Section 5.3(b) below, other than in connection with this Agreement and the transactions contemplated hereby;
(viv) incur, create, assume or otherwise become liable for any indebtedness for borrowed money ormoney, other than in the ordinary course of business consistent with past practice, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, other than in the ordinary course of business consistent with past practice;
(viivi) enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than salary increases and bonuses granted to employees who are not officers or directors in the ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsof business consistent with past practice, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable LawsLaw, this Agreement, any applicable collective bargaining agreement or a binding written contract in effect on the date of this Agreement, or adopt any new employee benefit plan (or grant any options or awards thereunder);
(viiivii) enter into, adopt change its method of doing business or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle of accounting in a manner that is inconsistent with past practice practice;
(viii) settle any actions or claims, whether now pending or hereafter made or brought, involving an amount in excess of $25,000;
(ix) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Company Contract to which the Company is a party or any confidentiality agreement to which the Company is a party (except in the case of a confidentiality agreement to the extent required permitted by generally accepted accounting principles as advised by PricewaterhouseCoopers LLPSection 5.3(b) below), or make enter into any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the new Company and a Governmental AuthorityContract;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually obligations or liabilities in respect thereof or any acquisitions of any other business or any material portion thereof, other than in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practicespractice;
(xvxi) enter into subject to the terms of Section 5.3(b) of this Agreement, conduct its business in a manner or carry out take, or cause to be taken, any other transaction action that could reasonably be expected to prevent or materially delay the Company from consummating the transactions contemplated by this Agreement (regardless of whether such action would otherwise be permitted or not prohibited hereunder), including without limitation, any action that may materially limit or delay the ability of the Company to consummate the transactions contemplated by this Agreement as a result of antitrust or securities laws or other regulatory concerns;
(xii) make any material tax election or settle or compromise any material tax liability, other than in connection with currently pending proceedings or other than in the ordinary and usual course of business;
(xiii) 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 in the ordinary course of business and consistent with past practice of liabilities reflected or other than as permitted pursuant reserved against in the financial statements contained in the Company SEC Reports filed prior to the other clauses date of this Agreement or incurred in this Section 5.3(c);
(xvi) permit or cause any subsidiary to do any the ordinary course of the foregoing or agree or commit to do any of the foregoingbusiness and consistent with past practice; or
(xviixiv) agree in writing or otherwise to take any of action prohibited by the foregoing actionsforegoing.
Appears in 1 contract
Conduct of the Company’s Operations. During Except as expressly contemplated by this Agreement, as required by Applicable Law or as expressly permitted by or disclosed in Section 6.3(a) of the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Appointment Time, except as unless Parent otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned)consents, the Company shall, and shall cause its subsidiaries to, conduct its operations in the ordinary coursecourse in substantially the same manner as previously conducted, and and, consistent with the terms of this Section 6.3(a), shall use all reasonable best efforts to maintain and preserve its business organization and its material rights and franchises and to retain the services of its officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties parties, and to maintain all of its operating assets in their current condition (normal wear and tear excepted), to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Appointment Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby Agreement, as required by Applicable Law or as set forth expressly permitted by or disclosed in Section 5.3(c6.3(a) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securitiessecurities or the securities of its subsidiaries: (A) adjust, split, combine or reclassify the Company capital stock or that of its capital stocksubsidiaries, (B) make, declare or pay any dividend or distribution on, or or, directly or indirectly indirectly, redeem, purchase or otherwise acquire, any shares of its Company capital stock or that of its subsidiaries or any securities or obligations convertible into or exchangeable for any shares of Company capital stock or that of its capital stocksubsidiaries, other than dividends or distributions by any wholly owned subsidiaries of the Company to the Company or to a wholly owned, United States-based subsidiary of the Company, (C) grant any person any right or option to acquire any shares of Company capital stock or that of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plansubsidiaries, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its Company capital stock stock, Voting Company Debt or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its the Company capital stock stock, Voting Company Debt or such securities (except pursuant to (1) the exercise of Company the Options which that are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement) or the capital stock or such securities of its subsidiaries, (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of Company capital stock or that of its capital stocksubsidiaries;
(ii) directly or indirectly indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets having a value exceeding $100,000 individually or $250,000 in the aggregate other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend make or propose any changes in the Company Certificate Articles or the Company BylawsBy-laws or the comparable organizational documents of its subsidiaries;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other personperson other than the acquisition of assets in the ordinary course of business consistent with past practice;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individualperson, corporation or other entitythan in the ordinary course of business consistent with past practice, and not, in any case, in an amount in excess of $50,000;
(vii) create any subsidiaries;
(viii) enter into into, amend or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay topay, to any officerofficer or director, directoror, except for salary increases in the ordinary course of business consistent with past practice, consultant or employee employee, other than with respect to the termination of employment of any person in the ordinary course offer letters of business consistent with past practice with respect to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsnon-officer employees, or otherwise increase the compensation or benefits provided to to, or pay any officeramounts not otherwise due to, any officer or director, or, except in the ordinary course of business consistent with past practice, any consultant or employee employee, except as may be required by Applicable Laws or agreements existing on the date of this Agreement, or grant, reprice, or accelerate the exercise or payment of any the Options or other equity-based awards;
(ix) enter into, adopt or amend any Plan (or any new arrangement that would constitute a Plan), except as shall be required by Applicable Laws;
(viiix) enter into, adopt take any action that could give rise to severance benefits payable to any officer or amend director of the Company as a result of the consummation of any employee benefit or similar plan except as may be required of the transactions contemplated by Applicable Lawsthis Agreement (including in connection with any post-consummation termination of employment);
(ixxi) change any method or principle of accounting in a manner that is inconsistent with past practice Tax or financial accounting, except to the extent required by generally accepted accounting principles GAAP or Applicable Law as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries)Company's regular independent accountants;
(xii) incur make any material changes or commit modifications to any capital expenditurespricing policy or investment policy or any method of doing business;
(xiii) settle any Actions, whether now pending or hereafter made or brought involving, individually or in the aggregate, an amount in excess of the amount $100,000;
(xiv) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any Contract required to be set forth in Section 5.3(c) 5.16 to the Company Disclosure Schedule;
(xiiixv) modify enter into, amend or terminate any confidentiality agreements, standstill agreements or similar arrangements or waive any of its rights provisions under any provision of any existing confidentiality agreement, standstill agreement or standstill agreementsimilar arrangements (other than as expressly permitted by Section 6.3(b)), provided that in connection with the consideration of business opportunities in the ordinary course of business, the Company may enter into confidentiality agreements consistent with past practice containing customary terms and conditions;
(xivxvi) enter into write up, write down or write off the book value of any license of technology outside the Company’s ordinary and usual course of business consistent with past practicesassets, except as required by GAAP consistently applied or as required by Applicable Law;
(xvxvii) incur or commit to any capital expenditures in excess of $1,250,000 in the aggregate provided, that such expenditures are incurred or committed in a manner generally consistent with the Company's existing capital expenditure plan, a copy of which has been furnished to Parent;
(xviii) make any payments in respect of policies of directors' and officers' liability insurance (premiums or otherwise), other than premiums paid in respect of its current policies not in excess of the amount paid prior to the date of this Agreement;
(xix) take any action to exempt or make not subject to (A) the provisions of Article 13.03 of the TBCA or (B) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any person (other than Parent or its subsidiaries), or any action, which person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(xx) take any action that would reasonably be likely to result in (A) any representation or warranty of the Company set forth in Article V becoming not true or not accurate in any material respect or (B) any condition precedent to the Offer (as set forth in Annex A) or any condition to the Merger set forth in Article VII not being satisfied;
(xxi) enter into or carry out any other transaction other than in the ordinary and usual course of business or (other than as expressly permitted pursuant to the other clauses in this by Section 5.3(c6.3(b));
(xvixxii) make, revoke or amend any Tax election (other than in the ordinary course), settle or compromise any material claim or assessment with respect to Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any Taxes or amend any Tax Returns;
(xxiii) permit or cause any subsidiary of its subsidiaries to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixxiv) agree (whether or not in writing or otherwise writing) to take any of the foregoing actions.
Appears in 1 contract
Conduct of the Company’s Operations. During the period from ----------------------------------- the date of this Agreement to the Effective Time, the Company shall use all reasonable efforts to conduct its operations in the ordinary course, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its operations in the ordinary coursehereby, and shall use all reasonable efforts to maintain and preserve its business organization and to retain the services of its officers and key employees and use all reasonable efforts to maintain relationships with customers, suppliers, lessees, licensees and other third parties to with the end intent that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c) to the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):Parent:
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (C) grant any person any right or option to acquire any shares of its capital stock, other than the rights or options granted to newly hired or promoted employees, not in excess of 50,000 shares of Company Common Stock per employee and 250,000 300,000 shares of Company Common Stock in the aggregate, which options shall have an exercise price not less than the fair market value of the Company Common Stock on the date of grant for grants to newly hired or promoted employees and shares to be granted under the Company 423 Plangrant, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of Company Options which are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreement, (2) the Company 423 Plan in accordance with Section 2.42.5, or (3) the Company’s 's 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets other than in the ordinary course of business;
(iii) amend the Company Certificate or the Company Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of or other equity interests in any other person;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(vii) except as set forth in Section 5.3(c)(vii) of the Company Disclosure Schedule, enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “"at will” " and which do not provide any post termination benefits except as may be required by Applicable Laws, or otherwise increase the compensation or benefits provided to any officer, director, consultant or employee except as may be required by Applicable Laws;
(viii) enter into, adopt or amend any employee benefit or similar plan except as may be required by Applicable Laws;
(ix) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by generally accepted accounting principles as advised by PricewaterhouseCoopers Deloitte & Touche LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental Authority;
(x) amend, terminate or modify any Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any Contract that, if it were in effect as of the date hereof, would be required to be listed in Section 3.17 of the Company Disclosure Schedule;
(xi) enter into any confidentiality, standstill or non-compete agreements or arrangements which after the Effective Time would apply or purport to apply to Parent or any of its subsidiaries (other than the Company or any of its subsidiaries);
(xii) incur or commit to any capital expenditures, individually or in the aggregate, in excess of the amount set forth in Section 5.3(c) to the Company Disclosure Schedule;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixv) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixvi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Intersil Corp/De)
Conduct of the Company’s Operations. During the period from Between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (the Termination Date), except as required by Applicable Law, as otherwise expressly contemplated or permitted by this Agreement and the transactions contemplated hereby or Agreement, as set forth in Section 5.3(c6.3(a) to of the Company Disclosure Schedule, without Schedule or with the prior written consent of Parent (Parent, which consent shall not be unreasonably withheld, delayed conditioned or conditioned)delayed, the Company shall conduct its operations in the ordinary course, course and shall use all its reasonable best efforts to maintain and preserve its business organization and its material assets, rights and franchises and to retain the services of its officers and key employees and maintain its advantageous business relationships with customers, suppliers, lessees, licensees and other third parties to the end that its goodwill and ongoing business shall not be impaired in any material respectparties. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company shall not, except as required by Applicable Law, as otherwise expressly contemplated or permitted by this Agreement and the transactions contemplated hereby or as set forth in Section 5.3(c6.3(a) to of the Company Disclosure Schedule, without the prior written consent of Parent (Parent, which consent shall not be unreasonably withheld, conditioned or delayed (the parties acknowledging that any act or conditionedtransaction referred to in the definition of “Acquisition Proposal” in Section 6.3(c) will be governed by Section 6.3(c) and not this Section 6.3(a)):
(i) do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock, (B) other than dividends or distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockstock (except for acquisitions, or deemed acquisitions, of Company Common Stock or other equity securities of the Company in connection with (x) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”); (y) required tax withholding in connection with the exercise of Company Stock Options and the vesting of Company Restricted Shares, and other awards pursuant to the Plans; and (z) forfeitures of Company Stock Options and Company Restricted Shares, pursuant to their terms as in effect on the date of this Agreement, (C) grant any person any right or option to acquire any shares of its capital stock, other than not in excess of 50,000 shares of Company Common Stock per employee and 250,000 shares of Company Common Stock in stock or modify the aggregate, which options shall have an exercise price not less than the fair market value or vesting period of the any Company Common Stock on the date of grant for grants to newly hired Options or promoted employees and shares to be granted under the Company 423 PlanRestricted Shares, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or any other securities or obligations convertible into or exchangeable or exercisable for any shares of its capital stock or such securities (except pursuant to (1) the exercise of the Company Stock Options which and the vesting or delivery of Company Restricted Shares that, in each case, are outstanding as of the date hereof or which are granted by the Company prior to the Effective Time in compliance with the terms of this Agreementhereof), (2) the Company 423 Plan in accordance with Section 2.4, or (3) the Company’s 401(k) plan as in effect on the date hereof) or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of its capital stock;
(ii) directly or indirectly sell, transfer, lease, license, pledge, mortgage, encumber encumber, subject to any Lien (other than a Permitted Lien) or otherwise dispose of any of its property or assets other than in the ordinary course of businessbusiness consistent with past practice;
(iii) amend make or propose any changes in the Company Company’s Certificate or the Company Company’s Bylaws, except as may be required by Applicable Law or the rules and regulations of the SEC or the NYSE MKT;
(iv) merge or consolidate with any other person;
(v) acquire assets (A) any real property or capital stock of any person or other equity interests in (B) any other personassets outside of the ordinary course of business consistent with past practice in an amount in excess of $100,000;
(vi) adopt or enter into a plan of complete and partial liquidation, dissolution, restructuring or recapitalization or other reorganization of the Company or any of its subsidiaries;
(vii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individualperson, corporation except for (x) any indebtedness for borrowed money among the Company and its subsidiaries or other entityamong the Company’s subsidiaries, (y) letters of credit issued under the Company’s credit agreements in effect prior to the execution of this Agreement and (z) trade payables, capital lease obligations, or obligations issued or assumed as consideration for services or property, including inventory, in each case, in the ordinary course of business;
(viiviii) create any subsidiaries or directly or indirectly sell, transfer, lease, pledge, mortgage, encumber, subject to any Lien or otherwise dispose of any capital stock or other equity interests in existing subsidiaries;
(ix) hire any new employees except to replace any non-executive employees whose employment terminated after the date of this Agreement or enter into or modify any employment, severance, stay-put termination or similar agreements or arrangements with, or grant or modify any bonusesCompany Stock Options, Company Restricted Shares or other equity or incentive awards, salary increases, severance or termination pay to, any officer, director, consultant or employee other than ordinary course offer letters to newly hired employees that provide for employment that is “at will” and which do not provide any post termination benefits except as may be required by Applicable Lawsemployee, or otherwise increase the compensation or benefits provided to any present or former officer, director, consultant or employee except as may be required by Applicable LawsLaw, other than customary wage or salary increases in the ordinary course of business consistent with past practice;
(viiix) enter into, adopt or amend any employee benefit or similar plan Plan, except as may be required by to comply with Applicable LawsLaw, or as may be required as part of the annual enrollment process;
(ixxi) take any action that could give rise to severance benefits payable to any officer, director or employee of the Company as a result of consummation of the Transactions;
(xii) change any method or principle of accounting in a manner that is inconsistent with past practice practice, except to the extent required by generally accepted accounting principles GAAP, SEC rule or policy or Applicable Law, in each case as advised by PricewaterhouseCoopers LLP, or make any material Tax election (unless required by law or consistent with prior practice) or settle any material Tax liability which is the subject of dispute between the Company and a Governmental AuthorityCompany’s regular independent accountants;
(xxiii) amendmodify, terminate amend or modify terminate, or waive, release or assign any material rights or claims with respect to, any Material Contract listed in Section 3.17 of the Company Disclosure Schedule or enter into any contract that would be a Material Contract thatother than in the ordinary course of business consistent with past practice;
(xiv) modify, if it were amend, terminate, release, assign, or fail to renew or maintain in effect as any Company Permits other than in the ordinary course of business; consistent with past practice;
(xv) (A) incur, authorize or commit to any capital expenditures in excess of the date hereof, would be required to be listed amounts set forth in Section 3.17 the most recent capital plan of the Company Disclosure Scheduleand its subsidiaries made available to Parent or (B) materially accelerate the timing of any capital expenditures from the most recent capital plan made available to Parent;
(xixvi) enter into permit any confidentiality, standstill or non-compete agreements or arrangements which after material insurance policy naming the Effective Time would apply or purport to apply to Parent Company or any of its subsidiaries as a beneficiary or a loss payee to be canceled or terminated, except in the ordinary course of business;
(xvii) commence or settle any Action other than commencement of any Action in the ordinary course of business or settlement of any Action (a) for monetary of payment of less than $100,000 individually and $250,000 in the aggregate and (b) that does not impose any material restriction or obligation on the Company or any of its subsidiaries);
(xiixviii) incur loan or commit to advance any capital expendituresmoney or other property to, individually or in the aggregateenter into any transaction with, in excess any equity holder, affiliate or current or former director or officer of the amount set forth in Section 5.3(c) to the Company Disclosure Scheduleor any of its subsidiaries;
(xiii) modify or waive any of its rights under any provision of any confidentiality agreement or standstill agreement;
(xiv) enter into any license of technology outside the Company’s ordinary and usual course of business consistent with past practices;
(xv) enter into or carry out any other transaction other than in the ordinary and usual course of business or other than as permitted pursuant to the other clauses in this Section 5.3(c);
(xvixix) permit or cause any subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; or
(xviixx) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
