Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or (ii) the termination of this Agreement in accordance with its terms (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business in the ordinary and usual course, and, except as set forth on Schedule 6.3, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated hereby: (a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure; (b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers; (c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets; (d) make any loans or advances to any person, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business; (e) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations; (f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities; (g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility; (h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets, or waive, release, grant, or transfer any rights of value; (i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers; (j) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any Benefit Plan; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain or discharge any officers and executive management personnel; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29, 1996, other than arrangements previously disclosed to Purchaser; (k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole; (l) enter into any speculative or commodity swaps, xxxxxx or other derivatives transactions or purchase any securities for investment purposes, other than in connection with cash management of the Company; (m) grant any option or preferential right to purchase or enter into any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiary.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 7.1 (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.3, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(d) make any loans or advances to any personPerson in excess of $10,000 in the aggregate, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(eb) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlysubstantially all of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Awards or warrants currently outstanding);
(ic) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(j) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any Benefit Plan; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29September 30, 1996, other than arrangements previously disclosed to Purchaser2005;
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(ld) enter into any speculative or commodity swaps, xxxxxx hedges or other derivatives transactions transaxxxxxx or purchase any securities for investment purposes, other than in connection with cash management of the CompanyCompany or in the ordinary course of business;
(me) grant issue any option shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Awards or preferential right to purchase warrants);
(f) declare or pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company's capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock, other than shares of Common Stock acquired in connection with the cashless exercise of Awards; or
(g) enter into a binding agreement to do any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiaryforegoing.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 9.1 (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.36.2 or as contemplated by this Agreement, the Note Purchase Agreement or the New Credit Facility, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(db) make any loans or advances to any personPerson, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(ec) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlyany substantial portion of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Options currently outstanding);
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(jd) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any material Benefit PlanArrangement; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29December 31, 19962000, other than arrangements previously disclosed to PurchaserPurchaser (other than ordinary course changes in base compensation for foreign employees which in the aggregate is not material);
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(le) enter into any speculative or commodity swaps, xxxxxx hedges or other derivatives transactions or purchase any securities for investment xxx xxvestment purposes, other than in connection with cash management of the Company;
(mf) grant any option or preferential right to purchase or enter into any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiary;
(g) issue any shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Options);
(h) declare or pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company's capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock;
(i) take any action that would require the consent of the holders of the Bridge Preferred Stock (if outstanding) under the Bridge Preferred Stock Certificate of Designations; or
(j) agree to do any of the foregoing.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 9.1 (the "“Interim Period"”), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.36.2 or as contemplated by this Agreement, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(d) make any loans or advances to any personPerson, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(eb) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlysubstantially all of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Awards currently outstanding);
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(jc) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any material Benefit PlanArrangement; approve or implement any employment severance arrangements (other than payments made under the Company's ’s existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29October 1, 19962005, other than arrangements previously disclosed to PurchaserPurchaser (other than ordinary course changes in base compensation which in the aggregate is not material);
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(ld) enter into any speculative or commodity swaps, xxxxxx hxxxxx or other derivatives transactions or purchase any securities for investment purposes, other than in connection with cash management of the CompanyCompany or in the ordinary course of business;
(me) grant issue any option shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Awards);
(f) declare or preferential right to purchase pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company’s capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock, other than shares of Common Stock acquired in connection with the cashless exercise of Awards; or
(g) enter into a binding agreement to do any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiaryforegoing.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 9.1 (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.36.2 or as ------------ contemplated by this Agreement, the Note Purchase Agreement or the New Credit Facility, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(db) make any loans or advances to any personPerson, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(ec) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlyany substantial portion of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Options currently outstanding);
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(jd) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any material Benefit PlanArrangement; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29December 31, 19962000, other than arrangements previously disclosed to PurchaserPurchaser (other than ordinary course changes in base compensation for foreign employees which in the aggregate is not material);
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(le) enter into any speculative or commodity swaps, xxxxxx hedges or other derivatives transactions or purchase any securities for investment xxx xnvestment purposes, other than in connection with cash management of the Company;
(mf) grant any option or preferential right to purchase or enter into any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiary;
(g) issue any shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Options);
(h) declare or pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company's capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock;
(i) take any action that would require the consent of the holders of the Bridge Preferred Stock (if outstanding) under the Bridge Preferred Stock Certificate of Designations; or
(j) agree to do any of the foregoing.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 9.1 (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.36.2 or as contemplated by this Agreement, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(d) make any loans or advances to any personPerson, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(eb) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlysubstantially all of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Awards currently outstanding);
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(jc) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any material Benefit PlanArrangement; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29October 1, 19962005, other than arrangements previously disclosed to PurchaserPurchaser (other than ordinary course changes in base compensation which in the aggregate is not material);
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(ld) enter into any speculative or commodity swaps, xxxxxx or other derivatives transactions or purchase any securities for investment purposes, other than in connection with cash management of the CompanyCompany or in the ordinary course of business;
(me) grant issue any option shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Awards);
(f) declare or preferential right to purchase pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company's capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock, other than shares of Common Stock acquired in connection with the cashless exercise of Awards; or
(g) enter into a binding agreement to do any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiaryforegoing.
Appears in 1 contract
Continuing Operations. From the date of this Agreement to the --------------------- earlier of (i) the Closing Date or and (ii) the termination of this Agreement in accordance with its terms Section 9.1 (the "Interim Period"), the Company and its -------------- Subsidiaries shall conduct their business businesses in the ordinary and usual coursecourse consistent with past practices, and, except as set forth on Schedule 6.36.2 or as ------------ contemplated by this Agreement, the Note Purchase Agreement or the New Credit Facility, neither the Company nor any Subsidiary ------------ shall, without the prior consent of Purchasers except as expressly contemplated herebyPurchasers:
(a) amend its charter or bylaws; split (including any reverse split), combine, or reclassify any shares of its capital stock; adopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the capital structure of the Company or any Subsidiary; or make any other material changes in its capital structure;
(b) except in the ordinary course of business consistent with past practice, (i) incur any material liability or obligation, (ii) become liable or responsible for the material obligations of any other Person (other than wholly owned Subsidiaries) or (iii) pay, discharge, or satisfy any material claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the financial statements; provided that, in no event shall any of the Companies enter into any settlement or compromise of any litigation or claims involving liability in excess of $1,000,000, without the prior written approval of the Purchasers;
(c) incur any indebtedness for borrowed money, other than revolving debt and letters of credit under the Credit Facility and up to an aggregate of $2,000,000 of debt for capital assets;
(db) make any loans or advances to any personPerson, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Company and its Subsidiaries with respect to cash management conducted in the ordinary and usual course of business;
(ec) declare or pay any dividend or make any other distribution with respect to its capital stock, other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of business or to the holders of the Convertible Exchangeable Preferred Stock as required pursuant to the terms of the Convertible Exchangeable Preferred Stock Certificate of Designations;
(f) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its capital stock or other securities other than as contemplated herein or pursuant to stock options issued and outstanding as of the date hereof or purchase or otherwise acquire any of its capital stock, employee or director stock options or debt securities;
(g) subject to Encumbrance any of its assets or properties, other than Permitted Encumbrances and Encumbrances permitted under the Credit Facility;
(h) other than in the ordinary course of business and sales of non-core assets of up to $3,000,000 in the aggregate, sell, lease, transfer, transfer or otherwise dispose of, directly all or indirectlyany substantial portion of the assets of the Company or its Subsidiaries, any assetstaken as a whole (other than the sale of inventory in the ordinary course), or waive, release, grant, any equity securities of the Company or transfer any rights its Subsidiaries (other than the issuance of valueshares of Common Stock upon exercise of Options currently outstanding);
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof, create or make any investment in any Subsidiary (other than a wholly owned Subsidiary); or make any other investment or expenditure of a capital nature or binding commitment therefor, other than in amounts already included in the capital expenditure budget for the Company and its Subsidiaries for the fiscal year ended March 29, 1997, as previously provided to and approved by Purchasers;
(jd) enter into, adopt, or (except as may be required by law) amend or terminate any collective bargaining agreement or any material Benefit PlanArrangement; approve or implement any employment severance arrangements (other than payments made under the Company's existing severance policy in accordance with past practice) or retain hire or discharge any officers and executive management personnelofficers; authorize or enter into any employment, severance, consulting services or other agreement with any directors, officers and executive management personnel or any of their Affiliates; or change the compensation or benefits provided to any director, officer, or employee as of March 29December 31, 19962000, other than arrangements previously disclosed to PurchaserPurchaser (other than ordinary course changes in base compensation for foreign employees which in the aggregate is not material);
(k) enter into any contract, agreement or lease involving total value or consideration or liability in excess of $50,000,000 or other commitment (not including cost reimbursable contracts) which other commitment involves any material risk of loss to the business, assets, properties, or financial position of the Company and its Subsidiaries; or, except as provided for in Section 6.12, amend, modify, or change in any materially adverse respect any of the agreements pertaining to existing indebtedness or any other existing contract agreement or lease involving total value or consideration or liability in excess of $50,000,000, or other commitment which is material to the business, assets, properties, or financial position of the Company and its Subsidiaries, taken as a whole;
(le) enter into any speculative or commodity swaps, xxxxxx or other derivatives transactions or purchase any securities for investment purposes, other than in connection with cash management of the Company;
(mf) grant any option or preferential right to purchase or enter into any other agreements that could adversely affect the marketability of any material asset of the Company or any Subsidiary;
(g) issue any shares of capital stock (other than shares of Common Stock issuable upon exercise of currently outstanding Options);
(h) declare or pay dividends on, or make any other distribution in respect of, any outstanding shares of the Company's capital stock or repurchase, redeem or otherwise retire for value any shares of its capital stock;
(i) take any action that would require the consent of the holders of the Bridge Preferred Stock (if outstanding) under the Bridge Preferred Stock Certificate of Designations; or
(j) agree to do any of the foregoing.
Appears in 1 contract
