Interim Covenants of the Company. During the Pre-Closing Period, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) or as otherwise set forth in Schedule 6.2, the Company shall (i) use commercially reasonable efforts to keep intact the Company and its business, as presently conducted and as conducted in the past; (ii) not take any action or omit to take any action other than in the ordinary course of its business as the same is presently being conducted; (iii) use commercially reasonable efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and retain and maintain good relationships with its clients and maintain the Company’s assets and the Facilities in good condition; (iv) perform their obligations under the Significant Contracts; (v) maintain the goodwill and reputation associated with the Company and (vi) to the extent requested by Parent, take such actions as may be required to terminate any or all of the Company Plans prior to the Closing Date. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not: (a) adopt or propose any change to the Certificate of Incorporation, Bylaws or other organizational documents of the Company; (b) merge or consolidate with any other Person or acquire a material amount of shares or assets of any other Person or effect any business combination, recapitalization or similar transaction; (c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, any of the Company’s properties or assets, other than in the ordinary and usual course of its business, for a consideration at least equal to the fair value of such property or asset; (d) (i) increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practice, or increase or accelerate or promise to increase or accelerate the vesting of any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a), to the directors, officers, employees, consultants or other service providers of the Company or any Subsidiary; (ii) grant or promise to grant any severance or termination pay or retention payments or benefits to, or enter into or amend any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Significant Contract, Company Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iv) pay or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiary; (e) incur any indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper; (f) enter into any Contract (i) which would be required to be listed on Schedule 3.12 had it been entered into prior to the date hereof or (ii) in which any Affiliate of the Company or any Stockholder has any direct or beneficial interest; (g) amend or prematurely terminate, or waive any material right or remedy under, any Significant Contract; (h) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, any account receivable or other receivable or defer or postpone the payment in full or any accounts payable; (i) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of the Company’s capital stock or any other securities, provided, however that (i) the Company may issue shares of Company Stock in connection with the exercise of Company Options or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock; (j) redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company); (k) create, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Interim Covenants of the Company. During From the Pre-date of this Agreement until the Closing PeriodDate, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) or as otherwise set forth in Schedule 6.2AppNet, the Company shall (i) use commercially reasonable efforts to keep intact the Company and its businessCompany's Business, as it is presently conducted being conducted, and as conducted in the past; (ii) organization intact and shall not take any action or omit permit to take any action be taken or do or suffer to be done anything other than in the ordinary course of its business as the same is presently being conducted; , (iiiii) use commercially its reasonable best efforts to keep available the services of the its directors, officers, employees, independent contractors and agents of the Company and retain and maintain good relationships with its clients and maintain the Company’s assets and the Facilities in good condition; , (iviii) perform their its material obligations under the Significant Contracts; Contracts and Government Contracts and (viv) maintain the goodwill and reputation associated with the Company and (vi) to the extent requested by Parentits Business, take such actions as may be required to terminate any or all of the Company Plans prior to the Closing Dateit is presently being conducted. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not, without the prior written consent of AppNet:
(a) adopt Adopt or propose any change to the in its Certificate of IncorporationIncorporation or Bylaws;
(b) Merge or consolidate with any other entity or acquire a material amount of assets of any other entity;
(c) Issue or sell any stock, Bylaws bonds, or other organizational documents securities of which the Company is the issuer or grant, issue or change any stock options, warrants or other rights to purchase securities of the Company;
(bd) merge or consolidate with Amend any other Person or acquire a material amount of shares or assets term of any other Person or effect any business combination, recapitalization or similar transactionoutstanding security of the Company;
(ce) purchase, sellSell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a lien or security interest or any other Encumbrance, Encumbrance any of the Company’s its properties or assets, other than in the ordinary and usual course of its business, consistent with the representations and warranties contained herein, and not in breach of any of the provisions of this Section 6.3, in each case for a consideration at least equal to the fair value of such property or asset;
(df) (i) Grant any salary increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practiceto, or increase or accelerate or promise to increase or accelerate the vesting draw of, any of any benefits providedits officers, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a), to the directors, officers, employees, consultants employees or other service providers of the Company or any Subsidiary; (ii) grant or promise to grant any severance or termination pay or retention payments or benefits toagents, or enter into any new, or amend or alter any existing, employment, bonus, incentive compensation, deferred compensation, profit sharing, retirement, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensationpension, stock option, restricted stockgroup insurance, pension, retirement, deferred compensation, employment, termination, severance death benefit or other fringe benefit plan, Significant Contract, Company Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant trust agreement or other service provider of the Company similar or dissimilar arrangement, or any Subsidiary; (iv) pay employment or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consulting agreement except consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiarycompensation practices;
(eg) incur Incur any bank indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper; provided, however, that the Company may, without AppNet's prior consent, borrow under that certain Factoring Agreement, dated February 11, 1998, between the Company and Silicon Valley Financial Services (the "Factoring Agreement) so long as the aggregate amount of Purchased Receivables (as defined in the Factoring Agreement) outstanding does not exceed $100,000;
(fh) enter Enter into any Contract leases of real property or any material leases of equipment and machinery;
(i) Enter into any contract, (i) which would be required to be listed on Schedule 3.12 4.13 as a Material Contract had it been entered into prior to the date hereof hereof; or (ii) in which any Affiliate of the Company or any Stockholder of the Stockholders has any direct or beneficial interest;
(g) amend or prematurely terminate; provided, or waive that AppNet shall not unreasonably withhold consent, if the proposed Contract is in the ordinary course of business consistent with prior practice and, provided that any material right or remedy under, any Significant Contract;
(h) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, any account receivable or other receivable or defer or postpone the payment in full or any accounts payable;
(i) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of such Contract will not have a Material Adverse Effect on the Company’s capital stock or any other securities, provided, however that (i) the Company may issue shares of Company Stock in connection with the exercise of Company Options or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;.
(j) redeemRedeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s its capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside declare or pay any dividend or other distribution (whether in cash, shares stock or other property) with respect to such its capital stock (except in connection with the termination of a Person’s service or employment with the Company)stock;
(k) createCreate, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, ; or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
(l) Pay or apply any of its assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount, directly or indirectly, to or for the benefit of the Company or any Affiliate thereof except for payments to the Company's Affiliates in accordance with past practice, provided that any such transaction is on terms no less favorable to the Company than terms generally available with third parties in arm's length transactions;
(m) 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;
(n) Acquire or negotiate for the acquisition of (by merger, consolidation, purchase of a substantial portion of assets or otherwise) any business or the start-up of any new business, or otherwise acquire or agree to acquire any assets that are material, individually or in the aggregate, to the Company;
(o) Commit a breach of or amend or terminate any Contract, Government Contract, permit, license or other right; provided, that, with respect to amendments of any Contract, AppNet shall not unreasonably withhold consent, if the proposed amendment to such Contract is in the ordinary course of business consistent with prior practice and provided that any such amendment will not have an adverse effect on the Company.
(p) Enter into any other transaction (i) that is not negotiated at arm's length with an Affiliate of the Company or any officer or director of the Company or the Stockholders, (ii) outside the ordinary course of business consistent with past practice or (iii) prohibited hereunder.
Appears in 1 contract
Interim Covenants of the Company. During (1) From the Pre-Closing Perioddate hereof until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except (i) as required by Law or a Governmental Entity (including a Securities Authority and Regulatory Authority), (ii) with the prior written consent of Parent (it being agreed that the Parent shall respond within five business days to any request for consent under this Section 5.1(1) that is made in accordance with the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) or as otherwise procedures set forth in Schedule 6.2E), (iii) as expressly required by this Agreement, or (iv) as set forth in Section 5.1(1) of the Company Disclosure Letter, (x) the Company shall (i) cause the business of the Company and its Subsidiaries to be conducted in the ordinary course of business and shall use commercially reasonable efforts to keep (a) preserve intact its and its Subsidiaries’ present business organization except as required, and only to the extent necessary, to obtain any Regulatory Clearances, pay and perform all material obligations when due and maintain its current relationships with Governmental Entities and other persons having business dealings with the Company or any of its Subsidiaries, (b) prepare and file any requisite regulatory filings with any Regulatory Authority on a timely basis and in accordance with the ordinary course of business, (c) obtain or maintain any Permits required by Governmental Entities in order to conduct its business as presently conducted or to preserve or perform its obligations under a Material Contract and (y) without limiting the generality of clause (x) above and notwithstanding anything to the contrary contained in clause (x) above, the Company shall not and shall not permit any of its Subsidiaries to:
(i) amend its Constating Documents;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other person, except for such transactions between the Company and its Subsidiaries, or dissolve or completely or partially liquidate, except as required, any only to the extent necessary, to obtain any Regulatory Clearances;
(iii) form any Subsidiary or, except in the ordinary course of business, as presently conducted and as conducted acquire assets from any other person with a value or purchase price in the past; aggregate in excess of $250,000 in any transaction or series of related transactions;
(iiiv) not take issue, sell, pledge, dispose of, grant, transfer or encumber (A) any action Company Securities (B) any Subsidiary Securities or omit (C) any share appreciation rights, phantom shares, profit participation interests or other similar agreements, commitments or arrangements payable in cash that relate to take the shares of, or other equity or voting interest in, the Company or any action of its Subsidiaries, other than (x) issuance or sales of Common Shares upon exercise of the Options outstanding on the date hereof or (y) as permitted under Section 5.1(1)(xvii);
(v) other than in the ordinary course of its business as the same is presently being conducted; business, create or incur any Lien on (iiiA) use commercially reasonable efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and retain and maintain good relationships with its clients and maintain the Company’s any assets and the Facilities in good condition; (iv) perform their obligations under the Significant Contracts; (v) maintain the goodwill and reputation associated with the Company and (vi) to the extent requested by Parent, take such actions as may be required to terminate any or all of the Company Plans prior to the Closing Date. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not:
(a) adopt or propose any change to the Certificate of Incorporation, Bylaws or other organizational documents of the Company;
(b) merge or consolidate with any other Person or acquire a material amount of shares or assets of any other Person or effect any business combination, recapitalization or similar transaction;
(c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, any of the Company’s properties or assets, other than in the ordinary and usual course of its business, for a consideration at least equal to the fair value of such property or asset;
(dCompany Intellectual Property) (i) increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practice, or increase or accelerate or promise to increase or accelerate the vesting of any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a), to the directors, officers, employees, consultants or other service providers of the Company or any Subsidiary; of its Subsidiaries having a value in excess of $50,000, (iiB) grant or promise to grant any severance or termination pay or retention payments or benefits to, or enter into or amend any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider Intellectual Property of the Company or any Subsidiary; of its Subsidiaries or (iiiC) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Significant Contract, Company Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant or other service provider of Intellectual Property licensed to the Company or any Subsidiary; of its Subsidiaries;
(ivvi) pay (A) make any loans, advances, guarantees or make, capital contributions to or agree or promise to pay or make, investments in any accrual or person (other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of than the Company or any Subsidiary of its wholly-owned Subsidiaries) in excess of $50,000 in the aggregate, or (B) deposit, invest or otherwise manage its cash, cash equivalents or marketable securities other than in the ordinary course of business consistent (including as to manner, amount and jurisdictions);
(vii) (A) declare, accrue, set aside, make or pay any dividend or other distribution payable in cash, shares, property or otherwise, with past practice respect to any Company Securities or in accordance with Subsidiary Securities (except for dividends paid by the Company’s 2013 budget; wholly-owned Subsidiaries to the Company or another wholly-owned Subsidiary of the Company), (B) repurchase, redeem or otherwise reacquire any shares or other securities, or subdivide, reclassify, recapitalize, split, combine or exchange or enter into any similar transaction with respect to any Company Securities or Subsidiary Securities or issue any other securities in respect of, in lieu of or in substitution for Company Securities or Subsidiary Securities, except for any split, combination or reclassification of shares of a wholly-owned Subsidiary of the Company, or any issuance of any securities of a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company, or (viC) terminate enter into any agreement with respect to the employmentvoting of its shares;
(viii) incur any indebtedness for borrowed money or assume, change the titleguarantee, office endorse or positionotherwise become liable or responsible for (whether directly, contingently or otherwise) any other person’s indebtedness for borrowed money, or materially reduce the responsibilities of issue or sell any Key Employee debt securities or any management, supervisory warrants or other key personnel rights to acquire any debt security of the Company or any Subsidiaryof its Subsidiaries;
(eix) incur make any indebtedness or borrowings, whether or not capital expenditures in excess of $250,000 in the ordinary course of its business, or issue any notes or commercial paperaggregate;
(fx) make any changes with respect to accounting policies or procedures other than as required by changes in GAAP;
(xi) settle any pending or threatened Proceedings or other material claims or disputes, other than the settlement of Proceedings or other material claims or disputes (A) reflected or reserved against in full in the Audited Balance Sheet or (B) the settlement of which does not include any obligation (other than the payment of money) to be performed by the Company or its Subsidiaries following the Effective Time that is in excess of $250,000 in the aggregate;
(xii) enter into any Contract (i) which that would be required to be listed on Schedule 3.12 have been a Material Contract had it been entered into prior to the date hereof;
(xiii) amend, modify, assign any rights under or terminate any Material Contract;
(xiv) other than pursuant to Material Contracts in effect prior to the date hereof and furnished to the Parent prior to the date of this Agreement, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or (ii) in which allow to lapse or expire or otherwise dispose of any Affiliate material assets, licenses, operations, rights or businesses of the Company or any Stockholder has any direct or beneficial interestof its Subsidiaries;
(gxv) amend assign or prematurely terminate, or waive grant an exclusive license of any material right in any Company Intellectual Property necessary or remedy underuseful for the manufacture, use, sale, offer for sale or importation of any Significant ContractCompany product or that otherwise enables a third party to compete with the Company with respect to the manufacture or sale of any product that competes with any Company product;
(hxvi) write-off (A) waive or terminate any inbound license in any IP Contract under any Patent or other Company Intellectual Property material to any Company product, (B) amend any inbound license in any IP Contract under any Patent or other Company Intellectual Property material to any Company product or (C) enter into any Contract that would constitute an IP Contract if entered into prior to the date of this Agreement;
(xvii) except as uncollectiblerequired by Law or otherwise required pursuant to existing Contracts or Benefit Plans in effect as of the date hereof and made available to the Parent prior to the date hereof, discount(A) increase the compensation or benefits of any current or former employee, director, or consultant of the Company or any of its Subsidiaries, (B) promote any employee, (C) pay any bonus to any person (including any employee), (D) amend, enter into or establish any extraordinary reserve new employment, change in control, severance, termination, indemnification or other agreement with respect toany current or former employee, director, or consultant of the Company or any of its Subsidiaries, (E) make any severance or termination payments to any current or former employee, director, or consultant of the Company or any of its Subsidiaries, (F) make any new equity awards to any person or accelerate the collection ofvesting of any award under any Benefit Plan, (G) establish, adopt, terminate or amend any account receivable Benefit Plan, or other receivable (H) hire any person as an employee or defer or postpone the payment in full or any accounts payableconsultant;
(ixviii) authorize except as required by Law, make, change or rescind any material Tax election, file any amended material Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to material Taxes, make a request for issuancea Tax ruling or enter into any closing agreement with respect to a material Tax, issuesurrender any right to claim a material Tax refund, sellor change any material method of Tax accounting;
(xix) enter into or consummate any tax planning or restructuring transaction which involves any transfer, deliver assignment or agree other disposition of any Company Intellectual Property;
(xx) make any “investment”, as that term is defined for purposes of proposed section 212.3 of the Tax Act, in any corporation that is, or commit will be prior to issuethe Effective Time, sell a “foreign affiliate” of the Company for purposes of the Tax Act;
(xxi) (A) waive or deliver amend (whether through except in the issuance or granting course of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwisediligently prosecuting the Company Intellectual Property) any shares of the Company’s capital stock rights in or to any other securities, provided, however that (i) Company Intellectual Property owned by the Company may issue shares or one of its Subsidiaries that is registered or the subject of an application for registration, (B) fail to diligently prosecute or maintain any material Company Intellectual Property owned by the Company or one of its Subsidiaries that is registered or the subject of an application for registration, in each case in the name of Company Stock or one of its Subsidiaries or (C) fail to make any required payments in connection accordance with the exercise terms of Company Options or Series A Warrants; and (ii) any IP Contract pursuant to which the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;licenses any material Intellectual Property; or
(jxxii) redeemauthorize, purchase commit or otherwise acquireenter into any Contract to do any of the foregoing.
(2) Nothing contained in this Agreement shall give Parent or the Purchaser, directly or indirectly, the right to control the Company or any shares of its Subsidiaries or direct the business or operations of the Company’s capital stock or debt securities Company or any optionof its Subsidiaries prior to the Effective Time. Prior to the Effective Time, warrant or other right to purchase or acquire any such sharesthe Company shall exercise, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares or other property) with respect to such capital stock (except in connection consistent with the termination of a Person’s service or employment with the Company);
(k) create, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution terms and conditions of this Agreement;, complete control and supervision over its operations and the operations of its Subsidiaries. Nothing in this Agreement, including any of the actions, rights or restrictions set forth herein, shall be interpreted in such a way as to place the Company, the Parent or the Purchaser in violation of any rule, regulation or policy of any Governmental Entity or Regulatory Authority, including any Law.
Appears in 1 contract
Interim Covenants of the Company. During From the Pre-date of this Agreement until the Closing PeriodDate, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) Parent or as otherwise set forth in Schedule 6.26.2 to the Disclosure Schedule, the Company shall (i) use commercially reasonable efforts to keep intact the Company and its business, as presently conducted Subsidiaries and as conducted in the past; (ii) its business and shall not take any action or omit permit to take any action be taken or do or suffer to be done anything other than in the ordinary course of its business as the same is presently being conducted; (iiiii) use commercially their reasonable efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and its Subsidiaries and retain and maintain good relationships with its clients and maintain the Company’s assets and the Facilities in good condition; (iviii) perform their obligations under the Significant Contracts; and (viv) use their reasonable efforts to maintain the goodwill and reputation associated with the Company and its Subsidiaries and (viv) to the extent reasonably requested by Parent, take such actions as may be required to terminate any or all of the Company Benefit Plans prior to the Closing Date. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not, and the Company shall not cause or permit its Subsidiaries to:
(a) adopt or propose any change to the Certificate Articles of IncorporationIncorporation (other than the Charter Amendment), Bylaws or other organizational documents of the CompanyCompany or its Subsidiaries;
(b) merge or consolidate with any other Person or acquire a material amount of shares stock or assets of any other Person or effect any business combination, recapitalization or similar transaction;
(c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, any of the Company’s or its Subsidiaries’ properties or assets, other than in the ordinary and usual course of its business, and not in breach of any of the provisions of this Section 6.2, in each case for a consideration at least equal to the fair value of such property or asset;
(d) (i) grant any salary increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practiceto, or increase or accelerate or promise to increase or accelerate the vesting of draw of, any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a)officers, to the directors, officers, employees, consultants employees or other service providers agents of the Company or any Subsidiary; its Subsidiaries, (ii) grant or promise to grant any severance or termination pay or retention payments or benefits to, or enter into any new, or amend or alter any existing, employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-incentive compensation, deferred compensation, profit sharing, thriftretirement, compensationpension, stock option, restricted stockgroup insurance, pension, retirement, deferred compensation, employment, termination, severance death benefit or other plan, Significant Contract, Company fringe or other Benefit Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant trust agreement or other service provider of the Company similar or dissimilar arrangement, or any Subsidiary; employment or consulting agreement (ivother than with respect to any existing position that is or has become vacant) pay or make(iii) hire, employ or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire engage (or agree or commit to hire, employ or engage) any new employees or consultants (other than with respect to any existing position that is or has become vacant), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities employment of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiaryexisting employees;
(e) except with the prior written consent of Parent (not to be unreasonably withheld), incur any bank indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper;
(f) except for a lease on the terms set forth on Schedule 6.2(f) hereto, enter into any leases of real property;
(g) enter into any leases of equipment and machinery except in the ordinary course of business;
(h) enter into any Contract (i) which would be required to be listed on Schedule 3.12 to the Disclosure Schedule had it been entered into prior to the date hereof or (ii) in which any Affiliate of the Company Company, any of its Subsidiaries or any Stockholder Key Shareholder has any direct or beneficial interest;
(gi) amend or prematurely terminate, or waive any material right or remedy under, any Significant Contract;
(hj) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, of any account receivable or other receivable receivable, or defer or postpone the payment in full or of any accounts account payable;
(ik) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of the Company’s or its Subsidiaries’ capital stock or any other securities, provided, however that (i) the Company may issue other than shares of Company Stock in connection with issued upon the exercise of Company Options or Series A Warrants; and (ii) that are outstanding on the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stockdate hereof;
(jl) redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s or its Subsidiaries’ capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares stock or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company)stock;
(km) create, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, ; or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
(n) pay or apply any of the Company’s or its Subsidiaries’ assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount, directly or indirectly, to or for the benefit of any Key Shareholder or any Affiliate thereof;
(o) change any of its methods of accounting or accounting practices in any respect;
(p) commence or settle any legal proceeding, action, demand, or claim against the Company or its Subsidiaries;
(q) make, amend or revoke any election with respect to Taxes, amend any Tax Return, or settle or compromise any Tax Liability;
(r) take any action, fail to take any action or enter into any agreement or understanding that causes the Company or its Subsidiaries or any Key Shareholder to be in breach or violation of any of the representations or warranties made in this Agreement or commit a breach of or amend or terminate any Material Contract or any permit, license or other right of the Company or its Subsidiaries; and
(s) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Webmethods Inc)
Interim Covenants of the Company. (a) During the Pre-Closing Interim Period, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) the Buyer or as otherwise set forth in Schedule 6.26.3(a), the Company and the Members shall, and shall cause each Company Subsidiary to, (i) use commercially reasonable best efforts to keep intact the Company and its businesseach Company Subsidiary and their respective businesses in all material respects, as presently conducted and as conducted in the past; conducted, (ii) use reasonable best efforts not take or permit to be taken on its behalf any action or omit to take any action actions other than in the ordinary course Ordinary Course of its business Business as the same is presently being conductedconducted in all material respects; (iii) use commercially reasonable best efforts to keep available the services of the directors, managers, officers, employees, independent contractors and agents of the Company and each Company Subsidiary and retain and maintain good relationships with its their respective clients and maintain the Company’s and each Company Subsidiary’s assets and the Facilities in good condition; (iv) use reasonable best efforts to perform their obligations under the Significant current Contracts; (v) use reasonable best efforts to maintain the goodwill and reputation associated with the Company and the Company Subsidiaries; and (vi) to the extent reasonably requested by Parentthe Buyer, take such actions as may be required to terminate any or all of the Company Benefit Plans and/ or to terminate the Company’s participation in any or all of the PEO Benefit Plans effective immediately prior to the Closing DateDate but contingent upon the Closing. The Company shall also use reasonable best efforts to cause each Company Joint Venture over which it has control to comply with this Section 6.3 as if such Company Joint Venture were a Company Subsidiary. Notwithstanding anything herein to the contrary, prior to the Closing the Company may distribute its Cash to the Members.
(b) Without limiting the generality of the foregoingSection 6.3(a), and as an extension thereof, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent the Buyer (which such consent will shall not be unreasonably withheld withheld, conditioned or delayed) or as otherwise set forth in Schedule 6.3(b), the Company shall not, and shall not permit any Company Subsidiary to, directly or indirectly, take any of the following actions during the Interim Period:
(ai) adopt cancel or propose fail to renew any change to the Certificate of Incorporation, Bylaws or other organizational documents of the Company’s or the Company Subsidiaries’ insurance policies identified in Schedule 3.19 (unless such insurance policy is replaced with a new policy of substantially similar or greater protection) or reduce the amount of any insurance coverage provided by such insurance policies;
(bii) merge repurchase, redeem or consolidate with otherwise reacquire any membership interests or other Person equity securities of the Company or any Company Subsidiary;
(iii) sell, issue, grant or authorize the issuance or grant of: (i) any membership interest or other equity security of the Company or any Company Subsidiary; (ii) any option, warrant or right to acquire any membership interest (or cash based on the value of a material amount membership interest) or other equity security or membership interest appreciation, phantom unit, profit participation or other similar right of shares the Company or assets any Company Subsidiary; or (iii) any instrument convertible into or exchangeable for any membership interest (or cash based on the value of a membership interest) or other equity security of the Company or any Company Subsidiary;
(iv) amend or permit the adoption of any other Person amendment to any of the Company’s or any Company Subsidiary’s certificate of formation, operating agreement or similar governing documents, or effect any business combinationrecapitalization, recapitalization reclassification of membership interests or similar transaction;
(cv) purchaseform any Subsidiary or acquire any equity interest or other interest in any other Person;
(vi) other than the incurrence or payment of any Non-Ordinary Course Liabilities and the purchase of laptops for employees in the Ordinary Course of Business, sell, lease or dispose of or make any contract for the purchasecapital expenditure;
(vii) (A) enter into, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, permit any of the Company’s properties assets owned or assets, other than in the ordinary and usual course of its business, for a consideration at least equal to the fair value of such property or asset;
(d) (i) increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practice, or increase or accelerate or promise to increase or accelerate the vesting of any benefits provided, or pay or award any payment or benefit not required as of the date hereof used by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a), to the directors, officers, employees, consultants or other service providers of the Company or any Subsidiary; (ii) grant or promise Company Subsidiary to grant any severance or termination pay or retention payments or benefits to, or enter into or amend any employment, severance, retention, change in control, consulting or termination Contract withbecome bound by, any director, officer, employee, consultant Contract that is or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Significant would constitute a Material Contract, Company Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iv) pay or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiary;
(e) incur any indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper;
(f) enter into any Contract (i) which would be required to be listed on Schedule 3.12 had it been entered into prior to the date hereof or (ii) in which any Affiliate of the Company or any Stockholder has any direct or beneficial interest;
(gB) amend or prematurely terminate, or waive any material right or remedy under, any Significant Contract that is or would constitute a Material Contract, in each case, except in the Ordinary Course of Business;
(hviii) write-off as uncollectible(A) acquire, discountlease or license any right or other material asset from any other Person; (B) sell or otherwise dispose of, or establish any extraordinary reserve with respect to, lease or accelerate the collection oflicense, any account receivable right or other receivable material asset to any other Person; or defer (C) waive or postpone relinquish any material right, in the payment case of each of clauses (A) and (B), except in full or any accounts payablethe Ordinary Course of Business;
(iix) authorize for issuance, issue, sell, deliver or agree or commit (A) lend money to issue, sell or deliver any Person (whether through except that the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights Company and the Company Subsidiaries may make routine travel advances to purchase or otherwise) any shares current employees of the Company’s capital stock or any other securities, provided, however that (i) Company and the Company may issue shares Subsidiaries in the Ordinary Course of Company Stock in connection with the exercise of Company Options Business); or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;
(j) redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company);
(kB) create, incur or assume or guarantee any Indebtedness for Borrowed Money that either (x) will not be repaid on or prior to the Closing or (y) is created, incurred, assumed or guaranteed outside of the Ordinary Course of Business;
(x) (A) except as may be required by applicable Law or the terms of any existing Benefit Plans, adopt, enter into, terminate, or amend in any material respect any Benefit Plan; (B) materially increase the compensation or benefits of any directors, managers, officers, employees or independent contractors, other than in connection with planned promotions set forth on Schedule 6.3(b)(x) or pay any benefit not required by any existing Benefit Plan; (C) grant any severance, retention, change in control or termination pay or other transaction-related compensation or benefits to any directors, managers, officers, employees or independent contractors; (D) terminate the employment or service of any employee or independent contractor whose annual base compensation exceeds $150,000, other than for cause or due to such individual’s death; (E) grant any equity awards to any directors, managers, officers, employees or independent contractors; (F) accelerate the vesting or payment of compensation or benefits under any Benefit Plan; (G) change any existing employee’s title or position, other than planned promotions set forth on Schedule 6.3(b)(x); (H) extend offers of employment to or hire any director or executive level or higher employees; or (I) engage any consultant or independent contractor whose relationship with the Company and any Company Subsidiary would not be terminable without liability on prior notice of sixty (60) days or indebtednessless;
(xi) except as required by GAAP, change any of the Company’s or any Company Subsidiary’s methods of accounting or accounting practices in any material respect;
(xii) (A) make, change or rescind any material election relating to Taxes; (B) settle or compromise any material claim, controversy or Proceeding relating to Taxes; (C) except as required by applicable Law, make any change to (or make a request to any Taxing Authority to change) any of the Company’s or any Company Subsidiary’s methods, policies or practices of Tax accounting or methods of reporting income or deductions for Tax purposes; (D) amend, refile or otherwise revise any previously filed material Tax Return, or forgo the right to any amount of refund or rebate of a previously paid Tax; (E) enter into or terminate any agreements with a Taxing Authority; (F) prepare any Tax Return in the ordinary course of business consistent a manner inconsistent with past practices; (G) consent to an extension or waiver of the statutory limitation period applicable to a claim or assessment in respect of Taxes; (H) enter into a Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement (other than any ordinary course Contracts that do not primarily relate to Taxes); (I) grant any power of attorney relating to Tax matters; or (J) request a ruling from any Taxing Authority with respect to Taxes;
(xiii) commence or settle (i) any Proceeding (other than to enforce its rights under this Agreement or the transactions contemplated hereby) with (A) non-monetary Liabilities or obligations of the Company applicable to any period following the Closing and/or (B) payment obligations of the Company that would remain unsatisfied following the Closing or (ii) any arbitration, lawsuit, or postpone any administrative proceeding;
(xiv) (A) change the Company’s or defer any Company Subsidiary’s practices or procedures with respect to the creationcollection of accounts receivable or the payment of accounts payable; (B) offer to discount the amount of any account receivable other than in the Ordinary Course of Business; (C) extend any incentive (whether to an account debtor, incurrencean account creditor or any employee or third party responsible for the collection of receivables or the payment of payables) with respect to any account receivable or account payable or the payment or collection thereof; or (D) take or omit to take any other action with the intent or effect of accelerating the collection of receivables or delaying the payment of payables;
(xv) (A) sell, license or otherwise distribute any material Company Intellectual Property to any Person, other than non-exclusive licenses granted to customers or end users pursuant to the Company’s or any Company Subsidiary’s standard forms of agreements pursuant to which the Company or any Company Subsidiary licenses, distributes, makes available or sells any Company Products or Company Services to customers or end users in the Ordinary Course of Business, (B) purchase or license any material Intellectual Property from any Person, (C) covenant not to assert Intellectual Property rights, or assumption (D) enter into a Contract, which if existing as of the date of this Agreement would constitute a Material Contract, with respect to the development of any liability Intellectual Property;
(xvi) fail to maintain any Company Registered Intellectual Property of the Company or indebtedness that would otherwise be createdthe confidentiality of any trade secret of the Company or any Company Subsidiary;
(xvii) except as required by any Governmental Authority, incurred change any of the Company’s or assumed any Company Subsidiary’s contractor purchasing system practices or procedures in any material respect; or
(xviii) authorize, approve, agree or commit to take any of the actions described in the ordinary course of business absent the execution foregoing clauses of this Agreement;Section 6.3(b). Nothing contained in this Agreement shall be deemed to give the Buyer, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Closing. Notwithstanding the foregoing or anything herein to the contrary, if during the Interim Period, the Company has commenced any Proceeding against the Buyer arising from the Buyer’s failure to consummate the transactions contemplated hereby following satisfaction or waiver of the conditions to closing set forth in ARTICLE VII, then the Company shall not be required to comply with its obligations under this Section 6.3.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Booz Allen Hamilton Holding Corp)
Interim Covenants of the Company. During From the Pre-date of this Agreement until the Closing PeriodDate, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) Parent or as otherwise set forth in Schedule 6.2, the Company shall (i) use commercially reasonable efforts to keep intact the Company and its business, as presently conducted and conducted, as conducted in the past; (ii) past and as proposed to be conducted in the future, and shall not take any action or omit permit to take any action be taken or do or suffer to be done anything other than in the ordinary course of its business as the same is presently being conducted; (iiiii) use commercially their reasonable best efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and retain and maintain good relationships with its clients and maintain the Company’s assets and the Facilities in good condition; (iviii) perform their obligations under the Significant Contracts; (viv) maintain the goodwill and reputation associated with the Company and (viv) to the extent requested by Parent, take such actions as may be required to terminate any or all of the Company Benefit Plans prior to the Closing Date. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not:
(a) adopt or propose any change to the Certificate Articles of Incorporation, Bylaws or other organizational documents of the Company;
(b) merge or consolidate with any other Person or acquire a material amount of shares or assets of any other Person or effect any business combination, recapitalization or similar transaction;
(c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, any of the Company’s properties or assets, other than in the ordinary and usual course of its business, consistent with the representations and warranties contained herein, and not in breach of any of the provisions of this Section 6.2, in each case for a consideration at least equal to the fair value of such property or asset;
(d) (i) grant any salary increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practiceto, or increase or accelerate or promise to increase or accelerate the vesting of draw of, any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a)officers, to the directors, officers, employees, consultants employees or other service providers agents of the Company or any Subsidiary; Company, (ii) grant or promise to grant enter into any severance or termination pay or retention payments or benefits tonew, or enter into amend or amend alter any existing, employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-incentive compensation, deferred compensation, profit sharing, thriftretirement, compensationpension, stock option, restricted stockgroup insurance, pension, retirement, deferred compensation, employment, termination, severance death benefit or other plan, Significant Contract, Company fringe or other Benefit Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant trust agreement or other service provider of the Company similar or dissimilar arrangement, or any Subsidiary; employment or consulting agreement (iviii) pay hire, employ or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire engage (or agree or commit to hire, employ or engage) any new employees or consultants (other than with respect to any existing position that is or has become vacant), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities employment of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiaryexisting employees;
(e) incur any indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper;
(f) enter into any leases of real property;
(g) enter into any leases of equipment and machinery except in the ordinary course of business;
(h) enter into any Contract (i) which would be required to be listed on Schedule 3.12 had it been entered into prior to the date hereof or (ii) in which any Affiliate of the Company or any Stockholder Shareholder has any direct or beneficial interest;
(gi) amend or prematurely terminate, or waive any material right or remedy under, any Significant Contract;
(hj) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, any account receivable or other receivable or defer or postpone the payment in full or any accounts payable;
(ik) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of the Company’s capital stock or any other securities, provided, however that (i) the Company may issue shares of Company Stock in connection with the exercise of Company Options or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;
(jl) redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company)stock;
(km) create, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
(n) pay or apply any of the Company’s assets to the direct or indirect payment, discharge, satisfaction or reduction of any Indebtedness or Non-Ordinary Course Liabilities;
(o) change any of its methods of accounting or accounting practices in any respect;
(p) commence or settle any legal proceeding, action, demand, or claim;
(q) make, amend or revoke any election with respect to Taxes, amend any Tax Return, or settle or compromise any Tax Liability, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes that would have any affect on the Company’s Tax Liabilities for any taxable period for which a Tax Return has not been filed;
(r) take any action, fail to take any action or enter into any agreement or understanding that causes the Company to be in breach or violation of any of the representations or warranties made in this Agreement or commit a breach of or amend or terminate any Significant Contract or any permit, license or other right;
(s) take or omit to take any action that has or would reasonably be expected to have the effect of materially accelerating sales to customers or revenues to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods; or
(t) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Sourcefire Inc)
Interim Covenants of the Company. During From the Pre-date of this Agreement until the Closing PeriodDate, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which the Buyer (which consent will shall not be unreasonably withheld withheld, conditioned or delayed) or as otherwise set forth in Schedule 6.2, the Company shall shall: (i) use commercially reasonable efforts to keep intact the Company and its business, as presently conducted and conducted, as conducted in the past; (ii) past and as presently proposed to be conducted in the future, and shall not take any action or omit permit to take any action be taken or do or suffer to be done anything other than in the ordinary course of its the Company’s business as the same is presently being conducted; (iiiii) use its commercially reasonable efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and Company, maintain the Company’s insurance policies in all material respects as currently in effect, retain and maintain good relationships with its clients the Company’s customers and maintain the Company’s assets and the Facilities in all material respects in good condition, normal wear and tear excepted; (iviii) perform their its material obligations under the Significant ContractsContracts and comply in all material respects with Laws; and (viv) maintain the goodwill and reputation associated with the Company and (vi) to the extent requested by Parent, take such actions as may be required to terminate any or all of the Company Plans prior to the Closing DateCompany. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or unless otherwise consented to by an instrument in writing signed by Parent the Buyer (which consent will shall not be unreasonably withheld withheld, conditioned or delayeddelayed or as otherwise set forth in Schedule 6.2), the Company shall not:
(a) adopt or propose any change to the Company’s Certificate of Incorporation, Bylaws or other organizational documents of the Companydocuments;
(b) merge or consolidate the Company with any other Person or acquire a material amount of shares stock or assets of any other Person or effect any business combination, recapitalization or similar transaction;
(c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of of, or make subject to a security interest or any other Encumbrance, any of the Company’s material properties or assets, other than in the ordinary and usual course of its business, for a consideration at least equal to the fair value of such property or asset;
(d) (i) increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made assets except in the ordinary course of business consistent with past practice;
(d) grant any salary increase to, or increase the draw of, any of the officers, directors, employees or accelerate agents of the Company, or promise to increase enter into any new, or amend, alter or accelerate the vesting or timing of payment of any benefits providedbenefit under, any existing, Benefit Plan, trust agreement or other similar or dissimilar arrangement, or pay any employment or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a)consulting agreement, to the directors, officers, employees, consultants or other service providers of the Company or any Subsidiary; (ii) grant or promise to grant any severance or termination pay or retention payments or benefits to, or enter into or amend any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Significant Contract, Company Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iv) pay or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than except in the ordinary course of business consistent with past practice or as otherwise required by applicable Law, provided that in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Key Employee or any management, supervisory or other key personnel of each such case the Company or any Subsidiaryprovides written notice to the Buyer at least three days prior to such action;
(e) incur any bank indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paperpaper except in the ordinary course of business consistent with past practice and within the limits of existing facilities;
(f) enter into any leases of real property;
(g) enter into any leases of equipment and machinery except in the ordinary course of business consistent with past practice;
(h) enter into any Contract (i) which would be required to be listed on Schedule 3.12 3.14(a) or Schedule 3.15(a) had it been entered into prior to the date hereof except in the ordinary course of business consistent with past practice or (ii) in which any Affiliate of the Company or any Stockholder Related Party has any direct or beneficial interest;
(gi) amend or prematurely terminate, or waive any material right or remedy under, any Significant ContractContract except in the ordinary course of business consistent with past practice;
(hj) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, any account receivable or other receivable or defer or postpone the payment in full or any accounts payablereceivable, except as required under GAAP;
(ik) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of the Company’s capital stock or any other securities, provided, however that (i) the Company may issue shares of Company Stock in connection with the exercise of Company Options or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;
(jl) except in accordance with Section 1.5, redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s capital stock or debt securities or any option, warrant or other right to purchase or acquire any such sharesstock or securities, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares stock or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company)securities;
(km) create, incur or assume any liability or indebtednessmaterial Liability, except in the ordinary course of business consistent with past practices, practice; or postpone or defer the creation, incurrence, or assumption of any liability or indebtedness material Liability that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
(n) pay or apply any of the Company’s assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount, directly or indirectly, to or for the benefit of any Seller or any Related Party, except for payment of compensation in the ordinary course of business and except as otherwise expressly permitted hereunder;
(o) change any of its methods of accounting or accounting practices in any respect;
(p) commence or settle any Proceeding;
(q) make, amend or revoke any election with respect to Taxes, amend any Tax Return, change any accounting method relating to Taxes, consent to any waiver or extension of any statute of limitations with respect to Taxes or Tax Returns, or settle or compromise any Tax Liability, except in each case with at least ten (10) days’ prior written notice to the Buyer;
(r) loan or advance any money or other asset or property to any Related Party, consultant or other vendor except for advances to employees and consultants of reasonable amounts to cover business expenses in the ordinary course of business consistent with past practice and loans and advances to vendors in the ordinary course of business;
(s) take any action, fail to take any action or enter into any agreement or understanding that causes any Seller Party to be in breach or violation of any of the representations or warranties made in this Agreement or commit a breach of, amend in any material respect or terminate any Material Contract or any permit, license or other material right; and
(t) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mantech International Corp)
Interim Covenants of the Company. During From the Pre-date of this Agreement until the Closing PeriodDate, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent(which consent will not be unreasonably withheld or delayed) Parent or as otherwise set forth in on Schedule 6.2, the Company shall shall, and cause its Subsidiaries to: (i) use commercially reasonable efforts to keep intact the Company and its Subsidiaries and their business, as presently conducted and conducted, as conducted in the past; (ii) past and as proposed to be conducted in the future, and shall not take any action or omit permit to take any action be taken or do or suffer to be done anything other than in the ordinary course of its their business as the same is presently being conducted; (iiiii) use their commercially reasonable efforts to keep available the services of the directors, officers, employees, independent contractors and agents of the Company and its Subsidiaries and retain and maintain good relationships with its their clients and maintain the Company’s their assets and the Facilities in good condition; (iviii) perform their obligations under the Significant Contracts; (viv) maintain the goodwill and reputation associated with the Company and its Subsidiaries; and (viv) to the extent requested by Parent, take such actions as may be required to maintain or terminate any or all of the Company Plans prior to the Closing Dateits Benefit Plans. Without limiting the generality of the foregoing, except to the extent expressly permitted by this Agreement or otherwise consented to by an instrument in writing signed by Parent (which consent will not be unreasonably withheld or delayed), the Company shall not, and the Company shall not cause or permit its Subsidiaries to:
(a) adopt or propose any change to the Certificate articles of Incorporationincorporation, Bylaws bylaws or other organizational documents of the CompanyCompany or its Subsidiaries; provided, however with respect to the amendment of the Articles of Incorporation to provide for the payment of the Shareholder Closing Payment to the holders of Common Stock pursuant to Section 1.7(a)(i), such written consent to such amendment shall not be unreasonably withheld or delayed by Parent;
(b) merge or consolidate with any other Person or acquire a material amount of shares stock or assets of any other Person or effect any business combination, recapitalization or similar transaction;
(c) purchase, sell, lease or dispose of or make any contract for the purchase, sale, lease or disposition of or make subject to a security interest or any other Encumbrance, any of the Company’s or its Subsidiaries’ properties or assets, other than in the ordinary and usual course of its business, consistent with the representations and warranties contained herein, and not in breach of any of the provisions of this Section 6.2, in each case for a consideration at least equal to the fair value of such property or asset;
(d) (i) grant any salary increase or promise to increase the compensation payable or to become payable (including, without limitation, bonus grants, incentive payments and retention payments), other than annual adjustments to base salary made in the ordinary course of business consistent with past practiceto, or increase or accelerate or promise to increase or accelerate the vesting of draw of, any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Company Plan as existing on the date hereof and disclosed in Schedule 3.8(a)officers, to the directors, officers, employees, consultants employees or other service providers agents of the Company or any Subsidiary; (ii) grant or promise to grant any severance or termination pay or retention payments or benefits toits Subsidiaries, or enter into any new, or amend or alter any existing, employment, severance, retention, change in control, consulting or termination Contract with, any director, officer, employee, consultant or other service provider of the Company or any Subsidiary; (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-incentive compensation, deferred compensation, profit sharing, thriftretirement, compensationpension, stock option, restricted stockgroup insurance, pension, retirement, deferred compensation, employment, termination, severance death benefit or other plan, Significant Contract, Company fringe or other Benefit Plan, trust, fund, policy or arrangement for the benefit of any director, officer, employee, consultant trust agreement or other service provider of the Company similar or dissimilar arrangement, or any Subsidiary; (iv) pay employment or make, or agree or promise to pay or make, any accrual or other arrangement for, or take, or agree to take, any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit; (v) hire (or agree or commit to hire, employ or engage), elect or appoint any officer, director, employee. consultant or other service provider of the Company or any Subsidiary other than in the ordinary course of business consistent with past practice or in accordance with the Company’s 2013 budget; or (vi) terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Key Employee or any management, supervisory or other key personnel of the Company or any Subsidiaryconsulting agreement;
(e) incur any bank indebtedness or borrowings, whether or not in the ordinary course of its business, or issue any notes or commercial paper;
(f) enter into any leases of real property or any renewal thereof;
(g) enter into any leases of equipment and machinery except in the ordinary course of business;
(h) enter into any Contract (i) which that would be required to be listed on Schedule 3.12 had it been entered into prior to the date hereof or (ii) in which any Affiliate of the Company Company, any of its Subsidiaries or any Stockholder Shareholder has any direct or beneficial interest;
(gi) amend or prematurely terminate, or waive any material right or remedy under, any Significant Contract;
(hj) write-off as uncollectible, discount, or establish any extraordinary reserve with respect to, or accelerate the collection of, any account receivable or other receivable or defer or postpone the payment in full or any accounts payablereceivable;
(ik) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, phantom rights, commitments, subscriptions, rights to purchase or otherwise) any shares of the Company’s or its Subsidiaries’ capital stock or any other securities, provided, however that (i) the Company may issue shares of Company Stock in connection with the exercise of Company Options or Series A Warrants; and (ii) the Company may issue shares of Company Common Stock in connection with the conversion of Company Preferred Stock;
(jl) redeem, purchase or otherwise acquire, directly or indirectly, any shares of the Company’s or its Subsidiaries’ capital stock or debt securities or any option, warrant or other right to purchase or acquire any such shares, or declare, accrue, set aside or pay any dividend or other distribution (whether in cash, shares stock or other property) with respect to such capital stock (except in connection with the termination of a Person’s service or employment with the Company)stock;
(km) create, incur or assume any liability or indebtedness, except in the ordinary course of business consistent with past practices, ; or postpone or defer the creation, incurrence, incurrence or assumption of any liability or indebtedness that would otherwise be created, incurred or assumed in the ordinary course of business absent the execution of this Agreement;
(n) pay or apply any of the Company’s or its Subsidiaries’ assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount, directly or indirectly, to or for the benefit of any Shareholder or any Affiliate thereof;
(o) change any of its methods of accounting or accounting practices in any respect;
(p) commence or settle any legal proceeding, action, demand or claim; provided, however, with respect to the LodgeNet Patent Suit, such written consent to settle shall not be unreasonably withheld or delayed by Parent;
(q) make, amend or revoke any election with respect to Taxes, amend any Tax Return, settle or compromise any Tax Liability, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(r) take any action, fail to take any action or enter into any agreement or understanding that causes the Company or its Subsidiaries or Canopy Group or Canopy Ventures to be in breach or violation of any of the representations or warranties made in this Agreement or commit a breach of or amend or terminate any Material Contract or any permit, license or other right; and
(s) agree or commit to do any of the foregoing.
Appears in 1 contract
