Conduct Prior to the Effective Time. SECTION 4.1 Conduct of Business by the Company. Except as set forth in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Time, the Company shall carry on its businesses in the ordinary course consistent with the manner as heretofore conducted and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, the Company shall not: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (b) amend its Certificate of Incorporation, Bylaws or other comparable charter or organizational documents; (c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any assets which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000, except purchases of inventory in the ordinary course of business consistent with past practice; (d) take any action that would, or that could reasonably be expected to, result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Merger set forth in Article VI not being satisfied. (e) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, provided, however, that between June 19, 2000 and the Closing Date, the Company may grant Company Options to purchase up to 1,600,000 shares of Company Common Stock; (f) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice; (g) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other person, other than advances to employees in the ordinary course in accordance with past practice; (h) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000; (i) pay, discharge, settle or satisfy any 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 consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Interim Financials or incurred in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreements to which the Company is a party; (j) except in the ordinary course of business, modify, amend or terminate any material contract or agreement to which the Company is a party or waive, release or assign any material rights or claims thereunder; (k) enter into any contracts, agreements, arrangement or understandings relating to the distribution, sale or marketing by third parties of the Company's products or products licensed by the Company; (l) except as required to comply with applicable law or by the terms of this Agreement, (i) adopt, enter into, terminate or amend any Benefit Plan or other arrangement for the benefit or welfare of any director, officer or current or former employee, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases of cash compensation or cash bonuses in the ordinary course of business consistent with past practice), (iii) pay any benefit not provided for under any Benefit Plan, (iv) except as permitted in clause (ii), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder) or (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; (m) form any subsidiary to the Company; or (n) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Digitalthink Inc)
Conduct Prior to the Effective Time. SECTION 4.1 5.1 Conduct of Business by of the Company. Except as set forth in Section 4.1 During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company Disclosure Scheduleagrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. The Company shall promptly notify Parent of any materially negative event involving or adversely affecting the Company or its business. In addition, except as permitted by the terms of this Agreement, without the prior written consent of Parent, which consent shall not be unnecessarily withheld, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall carry on its businesses in the ordinary course consistent with the manner as heretofore conducted and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality not do any of the foregoing, during the period from the date of this Agreement to the Effective Time, the Company shall notfollowing:
(a) (i) declareWaive any stock repurchase rights, set aside or pay any dividends onaccelerate, amend, or make change the period of exercisability of any other distributions in respect ofoutstanding Company Options or Company Common Stock subject to vesting, any of its capital stock, or reprice Company Options granted under the Option Plan (iior otherwise) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities cash payments in respect of, in lieu of or in substitution exchange for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesoptions;
(b) amend its Certificate Make any payments or enter into any commitment or transaction outside of Incorporation, Bylaws the ordinary course of business in excess of $10,000 in any one case or other comparable charter or organizational documents$25,000 in the aggregate;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any assets which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000, except purchases of inventory in the ordinary course of business consistent with past practice;
(d) take any action that would, or that could reasonably be expected to, result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Merger set forth in Article VI not being satisfied.
(e) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, provided, however, that between June 19, 2000 and the Closing Date, the Company may grant Company Options to purchase up to 1,600,000 shares of Company Common Stock;
(f) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(g) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other person, other than advances to employees in the ordinary course in accordance with past practice;
(h) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000;
(i) pay, discharge, settle or satisfy any 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 consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Interim Financials or incurred in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreements to which the Company is a party;
(j) except Except in the ordinary course of business, modify, amend or terminate any material contract or agreement to which the Company is a party or waive, release or assign any material rights or claims thereunder;
(kd) Transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Company Intellectual Property Rights (other than pursuant to end-user licenses granted to customers of the Company in the ordinary course of business, provided that no such license shall (i) contain any right of refusal to the license or (ii) involve the transfer of product(s) to any person or entity in violation of applicable U.S. export laws and regulations) or enter into grants to future patent rights;
(e) Enter into or amend any contractsagreements pursuant to which any other party is granted marketing, agreements, arrangement distribution or understandings relating similar rights of any type or scope with respect to the distribution, sale or marketing by third parties any products of the Company's products or products licensed by the Company;
(lf) Amend or otherwise modify (or agree to do so), except as required to comply with applicable law in the ordinary course of business, or by violate the terms of, any of this Agreementthe Contracts;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any Company Capital Stock;
(h) Purchase, redeem or otherwise acquire, directly or indirectly, any Company Capital Stock, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee or consultant pursuant to stock option or purchase agreements in effect on the date hereof and the satisfaction of any obligations in connection with termination of the Phantom Stock Plan and Phantom Stock;
(i) adoptIssue, enter grant, deliver, sell, pledge or authorize, any Company Capital Stock or securities convertible into, terminate or amend any Benefit Plan subscriptions, rights, warrants or options to acquire, or other arrangement agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except for the benefit or welfare issuance of any directorCompany Capital Stock upon exercise or conversion of presently outstanding Company Options, officer warrants or current Preferred Stock, or former employeethe grant of stock options to new employees pursuant to outstanding written offers of employment);
(j) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(k) Acquire or agree to acquire by merging or consolidating with, (ii) increase in or by purchasing any manner the compensation assets or fringe benefits equity securities of, or pay by any bonus toother manner, any directorbusiness or any corporation, officer partnership, association, joint venture or employee other business organization or division thereof, or otherwise acquire or agree to acquire outside of the ordinary course of business any assets in any amount, or in the ordinary course of business in an amount in excess of $10,000 in the case of a single transaction or in excess of $25,000 in the aggregate;
(l) Sell, lease, license, encumber or otherwise dispose of any properties or assets except for normal increases sales of cash compensation or cash bonuses inventory in the ordinary course of business consistent with past practice)practice and except for the sale, lease or disposition (iiiother than through licensing) pay any benefit of a property or assets that are not provided for under any Benefit Planmaterial, (iv) except as permitted in clause (ii), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder) or (v) take any action to fund individually or in any other way secure the payment aggregate, to the business of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planthe Company;
(m) form Incur individual liabilities in excess of $10,000 (in any subsidiary one case) or $25,000 (in the aggregate) or incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company; or, enter into any "keep well" or other agreement to maintain any financial statement condition 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;
(n) authorize Grant any ofseverance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to written agreements outstanding on the date hereof and as disclosed in the Company Schedules, or commit adopt any new severance plan;
(o) Adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offers, pay or agree to take pay any ofbonus or special or extraordinary remuneration to any director or employee, or increase the foregoing actions.salaries or wage rates of its employees, except as consistent with the ordinary course of the Company consistent with past practice with employees who are terminable "at will," pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants;
(p) Effect or agree to effect, including by way of hiring or involuntary termination, any change in the Company's directors, officers or key employees;
(q) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business, or except as required by GAAP, make any change in accounting methods, principles or practices;
(r) Pay, discharge or satisfy, in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financials (or the notes thereto) or that arose in the ordinary course of business subsequent to September 30, 1999 or expenses consistent with the provisions of this Agreement incurred in connection with any transaction contemplated hereby;
(s) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(t) Enter into any strategic alliance, joint development or joint marketing agreement;
(u) Commence a lawsuit other than (i) for the routine collection of bills, (ii) in such cases where it, in good faith, determines that failure to commence suit would result in the
Appears in 1 contract
Conduct Prior to the Effective Time. SECTION 4.1 5.1 Conduct of Business by of the Company. Except as set forth in Section 4.1 During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company Disclosure Scheduleagrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. The Company shall promptly notify Parent of any materially negative event involving or adversely affecting the Company or its business. In addition, except as permitted by the terms of this Agreement, without the prior written consent of Parent, which consent shall not be unreasonably withheld, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company (and the Executives as to subsection (i) only) shall carry on its businesses in the ordinary course consistent with the manner as heretofore conducted and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality not do any of the foregoing, during the period from the date of this Agreement to the Effective Time, the Company shall notfollowing:
(a) (i) declareWaive any stock repurchase rights, set aside accelerate, amend or pay change the period of exercisability of any dividends onoutstanding Company Options or Company Common Stock subject to vesting, or make any other distributions in respect of, any of its capital stock, reprice Company Options granted under the Option Plan (iior otherwise) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities cash payments in respect of, in lieu of or in substitution exchange for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesoptions;
(b) amend its Certificate Make any payments or enter into any commitment or transaction outside of Incorporation, Bylaws or other comparable charter or organizational documentsthe ordinary course of business;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any assets which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000, except purchases of inventory in the ordinary course of business consistent with past practice;
(d) take any action that would, or that could reasonably be expected to, result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Merger set forth in Article VI not being satisfied.
(e) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, provided, however, that between June 19, 2000 and the Closing Date, the Company may grant Company Options to purchase up to 1,600,000 shares of Company Common Stock;
(f) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(g) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other person, other than advances to employees in the ordinary course in accordance with past practice;
(h) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $25,000;
(i) pay, discharge, settle or satisfy any 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 consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Interim Financials or incurred in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreements to which the Company is a party;
(j) except Except in the ordinary course of business, modify, amend or terminate any material contract or agreement to which the Company is a party or waive, release or assign any material rights or claims thereunder;
(kd) Transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Company Intellectual Property Rights (other than pursuant to end-user licenses granted to customers of the Company in the ordinary course of business, provided that no such license shall (i) contain any right of refusal to the license or (ii) involve the transfer of product(s) to any person or entity in violation of applicable U.S. export laws and regulations) or enter into grants to future patent rights;
(e) Enter into or amend any contractsagreements pursuant to which any other party is granted marketing, agreements, arrangement distribution or understandings relating similar rights of any type or scope with respect to the distribution, sale or marketing by third parties any products of the Company's products or products licensed by the Company;
(lf) except as required Amend or otherwise modify (or agree to comply with applicable law do so), or by violate the terms of, any of this Agreementthe Contracts;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or 35 42 reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any Company Capital Stock;
(h) Purchase, redeem or otherwise acquire, directly or indirectly, any Company Capital Stock, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee or consultant pursuant to stock option or purchase agreements in effect on the date hereof;
(i) adoptIssue, enter grant, deliver, sell, pledge or authorize, any Company Capital Stock or securities convertible into, terminate or amend any Benefit Plan subscriptions, rights, warrants or options to acquire, or other arrangement agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except for the benefit or welfare issuance of any directorCompany Capital Stock upon exercise or conversion of presently outstanding Company Options or Warrants, officer the grant of stock options to new employees pursuant to outstanding written offers of employment), or current the transfer by Petex Xxxxxx xx up to 40,000 shares to Lailx Xxxxxx;
(j) Cause or former employeepermit any amendments to its Articles of Incorporation or Bylaws;
(k) Acquire or agree to acquire by merging or consolidating with, (ii) increase in or by purchasing any manner the compensation assets or fringe benefits equity securities of, or pay by any bonus toother manner, any directorbusiness or any corporation, officer partnership, association, joint venture or employee other business organization or division thereof, or otherwise acquire or agree to acquire outside of the ordinary course of business any assets in any amount, or in the ordinary course of business in an amount in excess of $10,000 in the case of a single transaction or in excess of $50,000 in the aggregate;
(l) Sell, lease, license, encumber or otherwise dispose of any properties or assets except for normal increases sales of cash compensation or cash bonuses inventory in the ordinary course of business consistent with past practice)practice and except for the sale, lease or disposition (iiiother than through licensing) pay any benefit of a property or assets that are not provided for under any Benefit Planmaterial, (iv) except as permitted in clause (ii), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder) or (v) take any action to fund individually or in any other way secure the payment aggregate, to the business of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planthe Company;
(m) form Incur individual liabilities in excess of $10,000 (in any subsidiary one case) or $50,000 (in the aggregate) or incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company; or, enter into any "keep well" or other agreement to maintain any financial statement condition 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;
(n) authorize Grant any ofseverance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to written agreements outstanding on the date hereof and as disclosed in the Company Schedules, or commit adopt any new severance plan;
(o) Adopt or amend any employee benefit plan, or enter into any employment contract, extend employment offers, pay or agree to take pay any ofbonus or special or extraordinary remuneration to any director or employee, or increase the foregoing actions.salaries or wage rates of its employees,
Appears in 1 contract
Conduct Prior to the Effective Time. SECTION 4.1 Conduct of Business by the Company. Except as set forth in Section 4.1 Company During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company Disclosure Scheduleshall, except to the extent that Parent shall otherwise consent in writing, carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all Legal Requirements, pay its debts and Taxes when due and pay or perform other material obligations when due. The Company shall further provide on a weekly basis through the Closing Date, a report, in a form mutually agreed upon by Parent and Company, providing detailed information on Company’s positions in its grain inventory. Without limiting the generality of the foregoing, without the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall carry on its businesses in the ordinary course consistent with the manner as heretofore conducted and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality not do any of the foregoing, during the period from the date of following (except as may be expressly contemplated by this Agreement to the Effective Time, the Company shall not:Agreement):
(a) Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (iother than the Merger);
(b) declareTransfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Company Intellectual Property;
(c) Declare, set aside aside, or pay any dividends on, on or make any other distributions (whether in cash, stock, equity interests or property) in respect of, of any of its capital stock, (ii) equity securities or similar interests in the Company or split, combine or reclassify any of its capital stock equity securities or similar interests or issue or authorize the issuance of any other securities interests in respect of, in lieu of or in substitution for shares of its capital stock, any equity securities or similar interests;
(iiid) purchasePurchase, redeem or otherwise acquire, directly or indirectly, any equity securities or similar interests in the Company, or any instrument or security that consists of a right to acquire such securities or interests;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock of equity securities or similar interests in the Company or any other interests convertible into equity securities thereof or any similar interests, or subscriptions, rights, warrants or options to acquire any equity securities or similar interests or any interests convertible into equity securities or similar interests or enter into other agreements or commitments of any character obligating it to issue any such shares equity securities, interests or other securitiesconvertible interests;
(bf) amend Split, combine or reclassify any class of Shares, provided that Company may reclassify Voting Members as members without voting rights (“Non-Voting Members”) and Non-Voting Members as Voting Members, as provided in Section 1.4 of the Company’s Bylaws;
(g) Cause, permit or propose any amendments to its Certificate of Incorporation, Bylaws or other comparable charter or organizational documents;
(ch) Except as set forth on Section 4.1(h) of the Company Disclosure Letter, acquire or agree to acquire (i) by merging or consolidating with, or by purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof; or (ii) otherwise acquire or agree to acquire any assets whichwhich are significant, individually, is in excess of $10,000 or, individually or in the aggregate, are in excess to the business of $25,000the Company, except purchases of inventory or enter into any joint ventures, strategic partnerships or alliances;
(i) Except for transactions in the ordinary course of business consistent with past practice;
(d) take any action that would, or that could reasonably be expected to, result in (i) any of its representations and warranties set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Merger set forth in Article VI not being satisfied.
(e) issue, deliverbusiness, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, provided, however, that between June 19, 2000 and the Closing Date, the Company may grant Company Options to purchase up to 1,600,000 shares of Company Common Stock;
(f) selltransfer, lease, license, mortgage or otherwise mortgage, pledge, encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(gj) (i) incur Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities interests or warrants options, warrants, calls or other rights to acquire any debt securities interests of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person condition, incur or modify any other material liability or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other person, foregoing other than advances pursuant to employees in existing credit facilities as set forth on Section 4.1(j) of the ordinary course in accordance with past practiceCompany Disclosure Letter;
(hk) make Except as set forth on Section 4.1(k) of the Company Disclosure Letter, adopt or agree pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to make any new capital expenditure pension, profit-sharing, bonus, compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or expenditures whichother employee benefit plan, individuallyagreement or arrangement, is employment or consulting agreement with or for the benefit of any Company manager, officer, employee, agent or consultant, whether past or present, or amend in excess of $10,000 orany material respect any such existing plan, agreement or arrangement in a manner inconsistent with the aggregate, are in excess of $25,000foregoing;
(il) payModify, dischargeamend, settle waive or terminate any Contract to which the Company is a party, including, without limitation, any joint venture agreement, or waive, release or assign any material rights or claims thereunder other than as described in Section 4.1(l) of the Company Disclosure Letter;
(m) Pay, discharge or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course payment of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Interim Financials or incurred accounts payable in the ordinary course of business consistent with past practice, or waive any material benefits ofof claims, liabilities or obligations reflected or reserved against in, or agree contemplated by, the consolidated financial statements (or the notes thereto) of the Company;
(n) Except as described in Section 4.1(l) of the Company Disclosure Letter, enter into any Contract which may not be canceled without penalty by the Company upon notice of thirty (30) days or less or which provides for payments by or to modify the Company in an amount in excess of $10,000 over the term of the agreement or which involve any exclusive terms of any kind;
(o) Permit any insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated without notice to Parent;
(p) Revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices;
(q) Make or change any Tax election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle or consent to any Tax Claim, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the statutory period of limitations applicable to any Tax Claim;
(r) Fail to make in a timely manner any filings with the SEC required under the Securities Act of 1933, as amended, or the Exchange Act or the rules and regulations promulgated thereunder;
(s) Waive any “standstill” or similar restrictions contained in any material respect, any confidentiality, standstill confidentiality or similar other agreements to which the Company it is a party;
(jt) except Take any action that would or is reasonably likely to result in any of the ordinary course conditions to the Merger set forth in Article VI not being satisfied, or would make any representation or warranty of business, modify, amend or terminate the Company contained herein inaccurate in any material contract respect at, or agreement to which as of any time prior to, the Effective Time, or that would materially impair the ability of the Company is a party to consummate the Merger in accordance with the terms hereof or waive, release or assign any material rights or claims thereundermaterially delay such consummation;
(ku) enter into Incur any contracts, agreements, arrangement fees or understandings relating to the distribution, sale or marketing by third parties of the Company's products or products licensed by the Company;
(l) except as required to comply expenses in connection with applicable law or by the terms of this Agreement, (i) adopt, enter into, terminate or amend any Benefit Plan or other arrangement for the benefit or welfare of any director, officer or current or former employee, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases of cash compensation or cash bonuses in the ordinary course of business consistent with past practice), (iii) pay any benefit not provided for under any Benefit Plan, (iv) except as permitted in clause (ii), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Benefit Plans or agreements or awards made thereunder) or (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan;
(m) form any subsidiary to the Companyfinancing transaction; or
(nv) authorize Enter into any ofwritten agreement, contract, commitment or arrangement to do any of the foregoing, or commit authorize, recommend, propose, in writing or agree otherwise or announce an intention to take do any of, of the foregoing actionsforegoing.
Appears in 1 contract
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.)
