Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent: (i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares; (iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company, (iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger), (v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company; (vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice; (vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company; (ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000; (x) make any material tax election or settle or compromise any material income tax liability; (xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party; (xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims; (xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or (xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or (xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Ovid Technologies Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing The Company covenants and except as otherwise contemplated by this Agreement), agrees that the Company will shall, and shall cause each of its subsidiaries to, conduct its operations according to its in the ordinary and usual course of business consistent with past practice and seek use all reasonable efforts to preserve intact its current their respective business organizationorganizations' goodwill, keep available the services of its current their respective present officers and employees key employees, and preserve its the goodwill and business relationships with customerssuppliers, suppliers distributors, customers and others having business dealings relationships with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timethem. Without limiting the generality of the foregoing, and except as otherwise contemplated permitted by this Agreement or as set forth on Schedule 5.1specifically contemplated by the Company Disclosure Letter, or as required by applicable law, rule or regulation prior to the Effective Time, without the consent of Acquiror, which consent shall not be unreasonably withheld, the Company will not, and will not permit any cause each of its Subsidiaries subsidiaries not to: (a) amend or propose to amend their respective charters or bylaws; or split, prior to the Effective Timecombine or reclassify their outstanding capital stock or declare, without the prior written consent set aside or pay any dividend or distribution in respect of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge any capital stock or otherwise encumber, issue or authorize or propose the issuance, sale, disposition or pledge or other encumbrance issuance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, of or in substitution for, Shares shares of its capital stock, except for cash dividends and cash distributions paid by subsidiaries to other subsidiaries or to the Company; 14 18 (b) (i) issue or authorize or propose the issuance of, sell, pledge or dispose of, or agree to issue or authorize or propose the issuance of, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class, any debt or equity securities convertible into or exchangeable for such capital stock or any other equity related right (including any phantom stock or SAR rights), other than any such issuance pursuant to options, warrants, rights or convertible securities outstanding on as of the date hereof;
; (ii) redeemacquire or agree to acquire by merging or consolidating with, purchase or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquireacquire or agree to acquire any assets in each case which are material, individually or propose in the aggregate, to redeem, purchase or otherwise acquire, any of the Company and its outstanding Shares;
subsidiaries taken as a whole; (iii) splitsell (including by sale-leaseback), combinelease, subdivide pledge, dispose of or reclassify encumber any Shares assets or declareinterests therein, set aside for payment which are material, individually or pay any dividendin the aggregate, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity the Company and its subsidiaries taken as sucha whole, other than dividends by a direct or indirect wholly owned Subsidiary in the ordinary course of the Company,
business and consistent with past practice; (iv) adopt a plan incur or become contingently liable with respect to any material indebtedness for borrowed money or guarantee any such indebtedness or issue any debt securities or otherwise incur any material obligation or liability (absolute or contingent) other than short-term indebtedness in the ordinary course of complete business and consistent with past practice; (v) redeem, purchase, acquire or partial liquidationoffer to purchase or acquire any (x) shares of its capital stock or (y) long-term debt other than as required by governing instruments relating thereto; (vi) other than in the ordinary course of business, dissolutionneither the Company nor any Company Subsidiary shall modify, merger, consolidation, restructuring, recapitalization amend or other reorganization of terminate any material contract or agreement to which the Company or any of its direct Company Subsidiary is a party or indirect Subsidiaries waive, release or assign any material rights or claims; or (other than the Merger),
(vvii) adopt enter into any amendments contract, agreement, commitment or arrangement with respect to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
foregoing; (vic) make enter into or amend any acquisitionemployment, by means severance, special pay arrangement with respect to termination of mergeremployment or other arrangements or agreements with any directors, consolidation officers or otherwisekey employees except for (i) normal salary increases and merit bonuses, (ii) arrangements in connection with employee transfers or disposition, of assets or securities (other than the Merger)iii) agreements with new employees, in each case other than case, in the ordinary course of business consistent with past practice;
; (viid) selladopt, leaseenter into or amend any, licenseor become obligated under any new bonus, mortgage profit sharing, compensation, stock option, pension, retirement, deferred compensation, healthcare, employment or otherwise encumber other employee benefit plan, agreement, trust, fund or subject to any Lien arrangement for the benefit or otherwise dispose welfare of any of its properties employee or assetsretiree, except sales as required to comply with changes in applicable law occurring after the ordinary course date hereof; provided, however, the Company shall not be prevented from amending the Company ESOP (as defined in Section 6.3(c) hereof) as contemplated by Section 6.3(c) hereof; (e) except as may be required as a result of business consistent with past practice and Liens existing as a change in law or in GAAP after the date hereof, change any of the date of this Agreement;
accounting principles or practices used by it; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xif) pay, discharge, settle discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in of the Company SEC Reports or incurred in the ordinary course of business consistent with past practice; (g) authorize, commit to or waive make any benefits of, equipment purchases or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, capital expenditures other than in the ordinary course of business and consistent with past practicepractice (provided, (D) except as permitted in clause (B) abovethat such purchases and/or expenditures shall, or for options included in the representation set forth in Section 3.2aggregate, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunderbe no more than $250,000) or as shown on Schedule 6.1(g); or (Eh) other than in the ordinary course of business consistent with past practice, take or agree to take any action to fund of the foregoing actions or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result inwould, or is reasonably likely to to, result inin any of its representations and warranties set forth in this Agreement becoming untrue, or in any of the conditions of to the Merger set forth in Article VI VII not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingsatisfied.
Appears in 2 contracts
Samples: Merger Agreement (Ameriwood Industries International Corp), Merger Agreement (Horizon Acquisition Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during During the period from the date of this Agreement through the Closing or the date, if any, on which this Agreement is earlier validly terminated pursuant to Section 8.1 (the Effective Time “Pre-Closing Period”), except (unless w) as may be required by applicable Law (x) with the prior written consent of Parent shall otherwise agree in writing and except (such consent not to be unreasonably withheld, conditioned or delayed), (y) as otherwise required or specifically contemplated by this Agreement), or (z) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will conduct its shall use reasonable best efforts to (i) ensure that the business and operations according to its of the Acquired Companies (including the clinical and regulatory work) shall be conducted in the ordinary and usual course of business consistent with past practice practices and seek to (ii) preserve intact its current each Acquired Company’s business organizationorganizations, keep available the services of its current officers assets and properties, and relationships with their respective suppliers, licensors, employees and preserve its relationships with customers, suppliers and others having other business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timerelationships. Without limiting the generality of the foregoing, and except (w) as otherwise contemplated may be required by this Agreement or as set forth on Schedule 5.1applicable Law, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without (x) with the prior written consent of ParentParent (such consent not to be unreasonably withheld, conditioned or delayed), (y) as required or specifically contemplated by this Agreement, or (z) as set forth in Section 6.1 of the Company Disclosure Letter, during the Pre-Closing Period, none of the Acquired Companies will:
(ia) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsoffer, issue, deliver, sell, grant, dispose of, pledge or otherwise encumberEncumber, or authorize or propose the offering, issuance, delivery, sale, disposition or grant, disposition, pledge or other encumbrance of (Ai) except pursuant to a Plan or awards outstanding under the ESPP on the date hereof, any additional shares of capital stock of any class (including or any other ownership interest of any of the Shares)Acquired Companies, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stockstock or any other ownership interest of any of the Acquired Companies, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of any of the Acquired Companies or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of any of the Acquired Companies (Bcollectively, the “Equity Interests”) or (ii) any other securities of any of the Acquired Companies in respect of, in lieu of, or in substitution for, Shares Common Stock outstanding on the date hereof;
(iib) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding shares of its outstanding Sharescapital stock or other securities of any Acquired Companies;
(iiic) split, combine, subdivide or reclassify any Shares capital stock or other Equity Interests of any of the Acquired Companies or declare, accrue, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution dividend in respect of any Shares outstanding capital stock or other Equity Interests of any of the Acquired Companies or otherwise make any payments to stockholders any such holders in their capacity as such;
(d) acquire, sell, lease, license, transfer, Encumber or dispose of, or agree to acquire, sell, lease, license, transfer, Encumber or dispose of, any material assets, properties or rights, other than dividends by a direct in the ordinary course of business;
(e) (i) incur, create, issue or indirect assume any Indebtedness or guarantee or otherwise become liable for any Indebtedness (including increasing the Indebtedness under Contracts in existence as of the date hereof); (ii) voluntarily create any Encumbrances on any property or assets of any of the Acquired Companies; or (iii) make any loans, advances or capital contributions to, or investments in, any other Person, other than loans among any of the Company and any wholly owned Subsidiary of the Company,;
(ivf) adopt (i) except as required by applicable Law or the terms of a plan Plan in effect as of complete the date hereof, increase the compensation or partial liquidationbenefits of any employee, dissolution, merger, consolidation, restructuring, recapitalization director or other reorganization individual independent contractor of the Company or any of its direct Subsidiaries, (ii) accelerate the vesting or indirect Subsidiaries payment of any compensation or benefits of any employee, director or individual independent contractor of the Company or any of its Subsidiaries, except as expressly contemplated in Section 3.5 of this Agreement, (other than iii) enter into, amend or terminate any Plan (or any plan, program, agreement or arrangement that would be a Plan if in effect on the Merger),
date hereof) or grant, amend or terminate any awards thereunder, provided that the Company may establish the bonus program described in Section 6.1(f)(iii) of the Company Disclosure Letter, (iv) fund any payments or benefits that are payable or to be provided under any Plan, except as required by the terms of such Plan or applicable Law, (v) adopt terminate without “cause” any amendments to its Certificate employee with an annual base salary in excess of Incorporation $75,000 or By-laws any director or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary individual independent contractor of the Company;
Company or any of its Subsidiaries, (vi) make any acquisitionloan to any employee, by means director or individual independent contractor of merger, consolidation the Company or otherwise, or disposition, any of assets or securities its Subsidiaries (other than advancement of expenses in the Mergerordinary course of business consistent with past practices), (vii) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization, or (viii) permit any payment period to be in effect under the ESPP, permit any participant contributions to be made or accumulated under the ESPP, or authorize or commence any new payment period under the ESPP;
(g) terminate, modify, assign or amend, or waive or assign any material rights under, any Company Material Contract, or enter into or become bound by any Contract that would be a Company Material Contract if in existence on the date hereof, in each case case, other than in the ordinary course of business consistent with past practice;
(viih) sellchange any of its material accounting principles, lease, license, mortgage practices or otherwise encumber methods unless required by Law or subject GAAP;
(i) amend or permit the adoption of any amendment to any Lien the Organizational Documents or otherwise dispose to the charter or other organizational documents of any of its properties the other Acquired Companies, or assetsform any Subsidiary;
(j) acquire any equity interest or other interest in any other Entity or effect or become a party to any merger, consolidation, plan of arrangement, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, issuance of bonus shares, division or subdivision of shares, consolidation of shares or similar transaction;
(k) authorize or make any commitment with respect to any material capital expenditure that is not budgeted in the Company’s current plan approved by the Board as of the date hereof;
(l) except sales in the ordinary course of business consistent with past practice and Liens existing as practices, (i) make or change any material Tax election, (ii) adopt or change any material method of Tax accounting, (iii) file any material amended Tax Return, (iv) enter into any tax allocation agreement, tax sharing agreement or tax indemnity agreement relating to any material Tax, (v) surrender the right to claim a material Tax refund, (vi) settle or compromise any claim, notice, audit report, or assessment in respect of any material Tax, (vii) consent to any waiver of the date statute of this Agreementlimitations period applicable to any material Tax claim or assessment, (viii) request any material Tax ruling, (ix) fail to pay any material Tax when such Tax becomes due and payable, or (x) prepare any Tax Returns in a manner which is not consistent with the past custom and practice with respect to the treatment of such items on such Tax Returns;
(viiim) commence any Legal Proceeding, except (A) incur any indebtedness for borrowed money or guarantee any such indebtedness as required with respect to continuation of another person, or issue or sell any debt securities or warrants or Legal Proceedings previously commenced and routine collection matters and other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than matters in the ordinary course of business consistent with past practicepractices; or (B) Legal Proceedings in connection with this Agreement, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of Support Agreements and the CompanyContemplated Transactions;
(ixn) make subject to Section 6.10, waive, release, assign, settle or agree compromise or offer or propose to make any new capital expenditure or expenditures whichwaive, individuallyrelease, is in excess of $100,000 orassign, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liabilityLegal Proceeding;
(xio) payextend, discharge, settle renew or satisfy enter into any claims, liabilities Contracts containing non-compete or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, exclusivity provisions that (A) adopt, enter into, terminate would materially restrict or amend limit the operations of any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical of the Acquired Companies or other plan, arrangement or understanding (whether or not legally bindingB) providing benefits apply to any current or former employee, officer or director future affiliates of the Company Company, the Surviving Corporation or any of its Subsidiaries Parent;
(collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (Ep) other than in the ordinary course of business consistent with past practice, take materially reduce the amount of insurance coverage or terminate or fail to renew any action material existing insurance policies;
(q) waive, terminate or allow to fund lapse any material Intellectual Property Rights owned by the Company or its Subsidiaries;
(r) authorize, recommend, propose, enter into, adopt a plan or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, merger (other than the Merger), consolidation or other reorganization (other than reorganizations involving only wholly owned subsidiaries of the Company which would not result in a material increase in the Tax liability of any other way secure of the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanAcquired Companies); or
(xivs) (A) takeagree, or agree authorize or commit to take, or adopt any action that would make any representation or warranty resolutions of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate Board in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoingsupport of, or enter into any contractContract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)
Interim Operations of the Company. Except as set forth on Schedule 5.1The Company covenants and agrees that, during prior to the period from earlier of the date purchase of the Shares pursuant to the Offer or the termination of this Agreement to the Effective Time in accordance with its terms (unless Parent Purchaser or OS shall otherwise agree in writing and except as otherwise expressly contemplated by this Agreement), ):
(a) the business of the Company will conduct and its operations according Subsidiaries shall be conducted only in the ordinary and usual course and the Company and each of its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations with customers, suppliers, employees, creditors and business associates in the ordinary and usual course of business consistent with past practice and seek business;
(b) the Company shall not (i) sell or pledge or agree to preserve intact its current business organization, keep available the services sell or pledge any stock owned by it in any of its current officers and employees and preserve Subsidiaries; (ii) amend its relationships Certificate of Incorporation or By-Laws; (iii) split, combine or reclassify the outstanding Shares; or (iv) declare, set aside or pay any dividend payable in cash, stock or property with customers, suppliers and others having business dealings with it respect to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, Shares;
(c) neither the Company will not, and will not permit nor any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
shall (i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grantpledge, dispose of or encumber any additional shares of, pledge or otherwise encumbersecurities convertible or exchangeable for, or authorize options, warrants, calls, commitments or propose the issuancerights of any kind to acquire, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including of the Shares), Company or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments Subsidiary or any other agreements of any character to purchase property or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or assets (B) any other securities in respect ofthan, in lieu of, or in substitution forthe case of the Company, Shares issuable pursuant to the Options outstanding on the date hereofhereof which are not to be redeemed pursuant to Section V.G.); (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any assets other than the sale of inventory and the sale or disposal of assets of insignificant value in the ordinary and usual course of business; (iii) incur or modify any indebtedness; provided, however, that the Company's loan agreement with American National Bank (as extended) will terminate on the earlier to occur of February 28, 2001 or the Closing Date and at such time the Company will repay the approximately $90,000 owed to such institution; (iv) acquire directly or indirectly by redemption or otherwise any shares of the capital stock of the Company; (v) make or authorize capital expenditures other than in the ordinary and usual course of business and in amounts not exceeding those contemplated by the Company's current capital expenditure budget set forth in the Company Disclosure Schedule; or (vi) make or authorize any acquisition of, or investment in, assets or stock of any other person or entity or merge or consolidate with any person or entity;
(iid) redeemexcept as provided in Sections VIII. F and VIII. G or on the Company Disclosure Schedule, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, neither the Company nor any of its outstanding SharesSubsidiaries shall grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer, employee or consultant of the Company or its Subsidiaries; and neither the Company nor any of its Subsidiaries shall establish, adopt, enter into, make any new grants or awards under or amend, any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement or any other benefit plan for the benefit of any directors, officers or employees;
(e) except as set forth on the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries shall (i) settle or compromise any claims or litigation (including any claims for Taxes made by a Governmental Entity) whereby the Company would be liable for in excess of $12,500, (ii) modify, amend or terminate any of its material contracts or waive, release or assign any material rights or claims, (iii) split, combine, subdivide cancel or reclassify forgive any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments indebtedness owed to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct Subsidiaries by any officer, director, employee or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities consultant of the Company or any of its Subsidiaries, or (Biv) make any loans cancel or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, forgive any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree indebtedness owed to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claimsother than inter-company debt;
(xiiif) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of neither the Company or nor any of its Subsidiaries shall make any Tax Election for a Tax Return or permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated;
(collectively, "Benefit Plans"), g) neither the Company nor any of its Subsidiaries shall enter into any contract or agreement under which the consideration to be paid or received by the Company exceeds $15,000 other than arrangements open purchase orders for materials or understandings adopted, entered into, terminated or amended inventory in the ordinary course of business consistent with past practice, business;
(Bh) increase in neither the Company nor any manner the compensation of its Subsidiaries knowingly shall take or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, fail to take any action that (i) is reasonably likely to fund or result in any other way secure failure of the payment of compensation Offer, unless such action is taken by the Board after consultation with Company counsel to fulfill its fiduciary obligations to the Company's shareholders; or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xivii) (A) take, or agree or commit is reasonably likely to take, any action that would make any representation or warranty of the Company hereunder contained herein inaccurate at the Effective Time (except for representations and warranties which speak at, or as of a particular dateany time prior to, which need be accurate only as Purchaser's purchase of such date), Shares pursuant to the Offer; and
(Bi) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that neither the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, nor any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, its Subsidiaries will authorize or enter into any contract, agreement, commitment or arrangement an agreement to do any of the foregoing.
Appears in 2 contracts
Samples: Tender Offer Agreement (Orthostrategies Acquisition Corp), Tender Offer Agreement (Langer Biomechanics Group Inc)
Interim Operations of the Company. Except The Company covenants and agrees that, except (i) as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or (ii) as set forth on Schedule 5.1agreed in writing by Parent, after the date hereof, and prior to the Effective Time:
(a) the business of the Company will and its subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, each of the Company and its subsidiaries shall use its best efforts to preserve its business organization intact and maintain its existing relations with customers, suppliers, employees, creditors and business partners;
(b) the Company shall not, directly or indirectly, amend or propose to amend its Certificate of Incorporation or By-laws or similar organizational documents;
(c) the Company shall not, and will it shall not permit any of its Subsidiaries subsidiaries to: (i)(A) declare, prior set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Effective TimeCompany's capital stock or that of its subsidiaries, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding other than current or accrued dividends on the date Preferred Stock, or (B) redeem, purchase or otherwise acquire directly or indirectly any shares of this Agreement and in accordance with their present termsthe capital stock of the Company or of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) authorize for issuance, issue, sell, grantpledge, dispose ofdeliver or agree to commit to issue, sell, pledge or otherwise encumberdeliver (whether through the issuance or granting of any options, or authorize or propose the issuancewarrants, salecalls, disposition or pledge subscriptions, stock appreciation rights or other encumbrance of (Arights or other agreements) or otherwise encumber any additional shares of capital stock of any class (including of the Shares), Company or of its subsidiaries or any securities convertible into or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock of any class of the Company or any securities of its subsidiaries other than Shares issued upon the exercise of Company Options outstanding on the date hereof in accordance with the Company Option Plans as in effect on the date hereof; or rights convertible into(iii) split, exchangeable for, combine or evidencing reclassify the right to subscribe for, any shares of outstanding capital stock of the Company or (B) of any of its subsidiaries or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares in the capital stock of the Company or of any of its subsidiaries;
(d) the Company shall not, and it shall not permit any of its subsidiaries to, acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or (ii) any assets, outside of the ordinary course of business, that individually is in substitution forexcess of $25,000 or in the aggregate in excess of $50,000;
(e) the Company shall not, Shares outstanding and it shall not permit any of its subsidiaries to, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any assets of the Company or of its subsidiaries other than (i) sales and dispositions of interests or rights with respect to property having an aggregate fair market value on the date hereofof this Agreement of less than $50,000, in each case only if in the ordinary course of business and consistent with past practice or (ii) encumbrances and Liens that are incurred in the ordinary course of business and consistent with past practice;
(iif) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, neither the Company nor any of its outstanding Sharessubsidiaries shall: (i) grant any increase in the compensation payable or to become payable by the Company or any of its subsidiaries to any of its executive officers or key employees or (ii)(A) adopt any new, or (B) amend or otherwise increase, or accelerate the payment or vesting of the amounts payable or to become payable under any existing, bonus, incentive compensation, deferred compensation, severance, profit sharing, stock option, stock purchase, insurance, pension, retirement or other employee benefit plan agreement or arrangement, including without limitation, the Company Option Plans; or (iii) enter into any employment or severance agreement with or, except in accordance with the existing written policies of the Company, grant any severance or termination pay to any officer, director or employee of the Company or any its subsidiaries;
(iiig) splitneither the Company nor any of its subsidiaries shall: (i) modify, combineamend or terminate any of its or its subsidiaries' material contracts or waive, subdivide release or reclassify assign any Shares material rights or declareclaims, set aside for payment or pay any dividend, or make except in the ordinary course of business and consistent with past practice (ii) enter into any other actualagreements, constructive commitments or deemed distribution contracts that are material to the Company and its subsidiaries taken as a whole, other than in respect the ordinary course of any Shares business and consistent with past practice, or otherwise make any payments material change that is adverse to stockholders the Company (including by way of termination) in their capacity (A) any existing agreement, commitment or arrangement that is material to the Company and its subsidiaries taken as sucha whole or (B) the conduct of the business or operations of the Company and its subsidiaries;
(h) neither the Company nor any of its subsidiaries shall: (i) incur or assume any long-term debt, or except in the ordinary course of business in amounts consistent with past practice, incur or assume any short-term indebtedness; (ii) incur or modify any material indebtedness or other liability; (iii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or of any of its subsidiaries; (iv) enter into any "keep well" or other arrangement to maintain any financial condition of another person; (v) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except in the ordinary course of business and consistent with past practice; (vi) make any loans, advances or capital contributions to, or investments in, any other person (other than to wholly owned subsidiaries of the Company); or (vii) enter into any material commitment or transaction (including, but not limited to, any material capital expenditure or purchase or lease of assets or real estate other than the purchase of products for inventory and supplies in the ordinary course of business);
(i) neither the Company nor any of its subsidiaries shall change any of the accounting methods used by it unless required by GAAP;
(j) neither the Company nor any of its subsidiaries shall, without the prior written consent of Parent, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than dividends by a direct the payment, discharge or indirect wholly owned Subsidiary satisfaction of any such claims, liabilities or obligations, in the ordinary course of business and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company,Company and its consolidated subsidiaries;
(ivk) neither the Company nor any of its subsidiaries will take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the Offer set forth in Annex A or any of the conditions to the Merger set forth in Article VI not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any respect at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company to consummate the Offer or the Merger in accordance with the terms hereof or materially delay such consummation;
(l) neither the Company nor any of its subsidiaries shall make any Tax election or settle or compromise any Tax liability or refund, except to the extent already provided in the Current Company SEC Documents;
(m) neither the Company nor any of its subsidiaries shall permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Parent, except in the ordinary course of business and consistent with past practice;
(n) neither the Company nor any of its subsidiaries will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries subsidiaries (other than the Merger),; and
(vo) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion neither the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of Company nor any of its properties or assetssubsidiaries will enter into an agreement, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personcontract, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan commitment or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, do any of the conditions of the Merger set forth in Article VI not being satisfied except thatforegoing, with respect or to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Environmental Systems Inc), Merger Agreement (Philip Services Corp)
Interim Operations of the Company. Except with respect to (i) the investment in the Company of up to $5 million by certain investors currently contemplated by the Company, (ii) all contracts, options, bonuses, stock purchase agreements or other compensation and other arrangements made with respect to Xxxxxxx X. Xxxxxxx and [****] and (iii) bonuses not to exceed $50,000 and option grants not to exceed 50,000 shares of capital stock of the Company made to certain employees or consultants, other than Xxxxxxx X. Xxxxxxx and [****], and except as set forth on Schedule 5.1in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to the Effective Time date of Closing or termination of this Agreement pursuant to Article VII hereof (unless Parent Purchaser shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will shall conduct its operations according to its ordinary and usual course of business consistent with past practice in substantially the same manner as heretofore conducted and seek use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current officers and subject to the prudent management of workforce needs, its employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timeit. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1in Section 4.1 of the Company Disclosure Schedule, the Company will not, and will shall not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentPurchaser:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsdirectly or indirectly, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to amend its Certificate of Incorporation or By-laws or similar organizational documents;
(ii) (A) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Company's capital stock, (B) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of the Company's capital stock or any instrument or security which consists of or includes a right to acquire such shares; (C) issue, sell, transfer, pledge, dispose of or encumber any shares of any class or series of the Company's capital stock or voting debt, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of the Company's capital stock or voting debt, other than (x) shares of Path 1 Class A Common Stock and/or Path 1 Class B Common Stock issued upon the exercise of options or other rights outstanding on the date hereof and (y) the issuance of options to employees or consultants to the Company in the ordinary course of business; or (D) split, combine or reclassify the outstanding capital stock of the Company;
(iii) acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in a substantial portion of the assets of, or by any other manner, any business or any Person or other business organization or division thereof;
(iv) alter (through merger, liquidation, reorganization, restructuring or in any other fashion fashion), the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(viv) make any acquisitionnew capital expenditures outside the ordinary course of business;
(vi) amend or terminate any material contract or enter into any agreement which would constitute a material contract, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger)except, in each case other than any case, in the ordinary course of business consistent with past practice; PROVIDED that any such amendment or termination does not have a Company Material Adverse Effect, or waive, release or assign any material rights or claims;
(vii) selltransfer, lease, license, mortgage sell or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales their respective assets other than dispositions in the ordinary course of business and consistent with past practice and Liens existing as practice; PROVIDED that the fair market value of assets sold does not exceed $100,000 in any single transaction or $500,000 in the date of this Agreementaggregate;
(viii) (A) incur any indebtedness for borrowed money mortgage, pledge or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or encumber any of its Subsidiariestheir respective assets, or (B) make except, in any loans or advancescase, other than in the ordinary course of business consistent with past practice, or ; PROVIDED that any capital contributions to, or investments in, any other person, other than such actions would not have a Company Material Adverse Effect.
(ix) except the employment agreement to be entered into between the Company and Xxxxxxx X. Xxxxxxx, enter into any employment or severance agreement with or grant any direct severance or indirect wholly owned Subsidiary termination pay to any officer or director of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary and usual course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable lawApplicable Law or expressly provided in this Agreement, (A) adopt, enter into, terminate amend or amend increase the amount or accelerate the payment or vesting of any bonusbenefit or award or amount payable under, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical any Benefit Plan or other contract, agreement, commitment, arrangement, plan, arrangement trust, fund or understanding (whether policy maintained by, contributed to or not legally binding) providing benefits to entered into by the Company for the current or future benefit or welfare of any director, officer or current or former employee, officer or director except to the extent necessary to coordinate any such Benefit Plans with the terms of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practicethis Agreement, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee or consultant of the Company (except for other than normal recurring increases in wages to employees who are not officers or bonuses directors or Affiliates in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement agreements or awards made thereunder, except, in the case of stock grants or option grants to employees of or consultants to the Company made in the ordinary course of business) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or;
(xi) (A) incur or assume any long term indebtedness, or except in the ordinary course of business, incur or assume any short term indebtedness in amounts inconsistent with past practice (provided, that such short-term indebtedness outstanding does not exceed $25,000 at any given time), (B) modify the terms of any indebtedness or other liability, except as set forth in Section 4.1 of the Company Disclosure Schedule, (C) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person (except for checks endorsed for collection in the ordinary course of business) or (D) make any loans, advances or capital contributions to, or investments in, any other Person other than (x) travel and other expense advances to employees in the ordinary course of business and (y) investments in publicly traded securities constituting less than 1.0% of the outstanding equity of the issuing entity);
(xii) change any of the accounting methods used by it unless required by GAAP;
(xiii) make any material election relating to Taxes, change any material election relating to Taxes already made, adopt any material accounting method relating to Taxes, change any material accounting method relating to Taxes unless required by GAAP, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment;
(xiv) pay, settle, release, discharge or satisfy any claims, liabilities or obligations (Aabsolute, accrued, asserted or unasserted, contingent or otherwise, including without limitation, the Litigation), other than the payment or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business and consistent with past practice, and of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company;
(xv) amend in any material respect, renew, terminate or cause to be extended any material lease, agreement or arrangement relating to any of its leased properties or enter into any material lease, agreement or arrangement with respect to any real property;
(xvi) permit any insurance policy having the Company as a beneficiary or a loss payable payee to be cancelled or terminated unless comparable replacement coverage is obtained; and
(xvii) take, or agree or commit to take, any action that would or is reasonably likely to result in any of the conditions to the consummation of the Transactions set forth in Article VI hereof not being satisfied, or would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being contained herein inaccurate in any material respect at the Effective Time (except for representations and warranties which speak at, or as of a particular dateany time prior to, which need be accurate only as the Closing, or that would materially impair the ability of such date), provided however that the Company shall be permitted or Purchaser to take or omit to take such action which can be cured, and consummate the Transactions in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent accordance with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose terms hereof or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingdelay such consummation.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Path 1 Network Technologies Inc), Purchase and Sale Agreement (Path 1 Network Technologies Inc)
Interim Operations of the Company. Except The Company covenants and agrees that, except as expressly required or permitted by this Agreement, and except as set forth on Schedule 5.1in Section 5.1 of the Company Disclosure Schedule, during the period from after the date hereof, and prior to the earlier of (x) the termination of this Agreement to in accordance with Article VIII and (y) the Effective Time (unless Parent shall otherwise agree consent in writing and except as otherwise contemplated by this Agreement), writing):
(a) the business of the Company will conduct its operations according to its and the Company Subsidiaries shall be conducted only in the ordinary and usual course of business consistent with past practice practice, and seek each of the Company and the Company Subsidiaries shall use its reasonable best efforts to preserve intact its current present business organizationorganization intact, to keep available the services of its current officers and key officers, employees and preserve its relationships consultants, and to maintain good relations with customers, suppliers suppliers, employees, contractors, distributors and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, it;
(b) neither the Company will notnor any Company Subsidiary shall, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) directly or indirectly, except with respect to the Company, for the issuance of Shares upon the exercise of the Options outstanding on the date hereof pursuant to the terms of this Agreement and in accordance with their present termssuch Options, issue, sell, grantmodify, transfer, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition encumber or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), Company or any capital stock or other equity interests of any Company Subsidiary, securities convertible into or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments warrants or any other agreements rights of any character kind to purchase or acquire any shares of such capital stock or any securities other equity interests or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
ownership interest; (ii) redeem, purchase amend or otherwise acquire, change its Articles of Incorporation or propose to redeem, purchase Bylaws or otherwise acquire, any of its outstanding Shares;
similar organizational documents; (iii) split, combine, reclassify, subdivide or reclassify redeem, or purchase or otherwise acquire, directly or indirectly, any Shares of its capital stock or other equity interests; or (iv) declare, set aside for payment or pay any dividenddividend or other distribution payable in cash, stock or property with respect to its capital stock, other than the payment of the Company’s regular quarterly dividend on October 16, 2006 and the declaration and payment of the Company’s next regular quarterly cash dividend in an amount not to exceed $0.005 per Share and at a time consistent with past practice;
(c) neither the Company nor any Company Subsidiary will (i) other than borrowings under the Company’s revolving credit facilities and the incurrence of trade credit in the ordinary course of business consistent with past practice, incur or assume indebtedness or issue any debt securities; (ii) other than in the ordinary course of business consistent with past practice, assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (iii) make any loans, advances (other than advances of credit in the ordinary course of business consistent with past practice related to the sale or financing of new or used equipment) or capital contributions to, or investments in, any other Person other than to or for the benefit of a Company Subsidiary; (iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any equity interest therein; or (v) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any of its assets or properties, other than in the ordinary course of business consistent with past practice;
(d) except to the extent required in a written contract or agreement in existence on the date hereof and included in a Company SEC Document filed prior to the date hereof or as set forth in Section 5.1(d) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary shall (i) change the compensation or benefits payable or to become payable to any of its officers or directors, or except in the ordinary course of business consistent with past practice, its employees, agents or consultants; (ii) enter into, extend or amend any employment, collective bargaining, severance, consulting, termination or other agreement or employee benefit plan; or (iii) make any loans or advances to any of its officers, directors, employees, agents, consultants or affiliates or change its existing borrowing or lending arrangements for or on behalf of any of such persons pursuant to an employee benefit plan or otherwise;
(e) neither the Company nor any Company Subsidiary shall (i) pay or arrange for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or affiliate or pay or make any other actualarrangement for payment to any officers, constructive directors, employees or deemed distribution in respect affiliates of the Company of any Shares amount relating to unused vacation days, except payments and accruals made in the ordinary course of business consistent with past practice; (ii) except as may be required pursuant to the terms of a Benefit Plan as in effect as of the date of this Agreement or otherwise by applicable Law, and, except in the ordinary course of business consistent with past practice with respect to employees other than executive officers of the Company, adopt or pay, grant, issue or accelerate salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any director, officer or employee, whether past or present, or (iii) amend in any material respect any such existing plan, agreement or arrangement (except as required by applicable Law);
(f) except in the ordinary course of business consistent with past practice, neither the Company nor any Company Subsidiary will, (i) modify, extend, amend or terminate any Material Contract to which the Company or any Company Subsidiary is a party or by which any of them or any of their respective properties or assets may be bound; (ii) waive, release or assign any material rights or claims under any of such Contracts; or (iii) enter into any Material Contract;
(g) neither the Company nor any Company Subsidiary will (i) change any of the accounting methods used by it except for such changes required by GAAP or by applicable Law or (ii) make any payments Tax election or change any Tax election already made, adopt any Tax accounting method, change any Tax accounting method, enter into any closing agreement or settle any claim or assessment relating to stockholders in their capacity as suchTaxes or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment;
(h) neither the Company nor any Company Subsidiary will pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, contingent or otherwise), other than dividends by a direct the payment, discharge or indirect wholly owned Subsidiary satisfaction of any such claims, liabilities or obligations, in the ordinary course of business consistent with past practice, or of claims, liabilities or obligations reflected or reserved against in the Financial Statements of the Company,Company for the period ended July 31, 2006 or incurred since July 31, 2006 in the ordinary course of business consistent with past practice;
(ivi) neither the Company nor any Company Subsidiary will (i) settle or commence any action, suit, claim, litigation or other proceeding involving an amount in excess of the amount reserved therefor in the Financial Statements or, to the extent not so reserved, in excess of $500,000 individually or, in the aggregate for all actions, suits, claims, litigation or other proceeding, an amount in excess of $5,000,000 or (ii) enter into any consent decree, injunction or other similar restraint or form of equitable relief in settlement of any action, suit, claim, litigation or other proceeding;
(j) neither the Company nor any Company Subsidiary will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries Company Subsidiary (other than with respect to Company, the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vik) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of neither the Company or nor any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, will take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need reasonably be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely expected to result in, in any of the conditions of to the Merger set forth in Article VI VII not being satisfied except thator that would reasonably be expected to materially delay the consummation of, with respect or materially impair the ability of the Company to consummate, the condition set forth transactions contemplated by this Agreement in Section 6.1(a), such action shall be permitted if it is consistent accordance with the fiduciary duties terms hereof;
(l) the Company shall not, and shall not permit any of the Company's Board Company Subsidiaries to, enter into, amend, modify or supplement any agreement, transaction, commitment or arrangement with any officer, director or other affiliate (or any affiliate of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing);
(m) except as may be reasonably required in order to conduct emergency operations, or neither the Company nor any Company Subsidiary shall make any capital expenditure which is not in all material respects in accordance with the annual budget for the fiscal year 2007, a true and correct copy of which was previously provided to Parent; and
(n) neither the Company nor any Company Subsidiary will enter into any agreement, contract, agreement, commitment or arrangement to do any of the foregoing, or authorize any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (JLG Industries Inc), Agreement and Plan of Merger (Oshkosh Truck Corp)
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Seller shall cause the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Seller shall not permit the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchaser: (i) except amend or otherwise change its Articles of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options outstanding on warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make create, incur, assume, maintain or permit to exist any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than indebtedness except as otherwise incurred in the ordinary course of business business, consistent with past practice;
, or except for the Company Closing Obligations, (vii) sellpay, leasedischarge or satisfy claims or liabilities (absolute, licenseaccrued, mortgage contingent or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiiotherwise) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or except for the Company Closing Obligations, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments inin financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other personPerson, other than (xi) alter in any material way the manner of keeping the books, accounts or records of the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), accounting practices therein reflected other than the paymentalterations or changes required by GAAP or applicable law, discharge(xii) enter into any indemnification, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill contribution or similar agreements contract pursuant to which the CompanyCompany may be required to indemnify any other Person or make contributions to any other Person, or any of its Subsidiaries is a party;
(xiixiii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase existing contracts in any manner that would result in any material liability to the compensation Company for or fringe benefits ofon account of such amendment or termination, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) takeor change any existing or adopt any new tax accounting principle, method of accounting or agree tax election except as provided herein or commit agreed to take, any action that would make any representation or warranty of in writing by the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingPurchaser.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Zewar Jewellery, Inc.), Stock Purchase Agreement (One E Commerce CORP)
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in not do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchaser: (i) except amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options outstanding on warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make create, incur, assume, maintain or permit to exist any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than indebtedness except as otherwise incurred in the ordinary course of business business, consistent with past practice;
, or except for the Company Closing Obligations, (vii) sellpay, leasedischarge or satisfy claims or liabilities (absolute, licenseaccrued, mortgage contingent or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiiotherwise) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or except for the Company Closing Obligations, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments inin financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other personPerson, other than (xi) alter in any material way the manner of keeping the books, accounts or records of the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), accounting practices therein reflected other than the paymentalterations or changes required by GAAP or applicable law, discharge(xii) enter into any indemnification, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill contribution or similar agreements contract pursuant to which the CompanyCompany may be required to indemnify any other Person or make contributions to any other Person, or any of its Subsidiaries is a party;
(xiixiii) except in the ordinary course of business, modify, amend or terminate any contract or agreement existing contracts in any manner that would result in any material liability to which the Company for or any on account of its Subsidiaries is a partysuch amendment or termination, or waive(xiv) change any existing or adopt any new tax accounting principle, release method of accounting or assign any rights or claims;
(xiii) tax election except as required provided herein or agreed to comply with applicable lawin writing by the Purchaser. Notwithstanding the foregoing, (A) adoptprior to the Closing, enter intothe Company may, terminate or amend any bonuswithout the consent of the Purchaser, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits create the Operating Subsidiary and transfer to any current or former employee, officer or director the Operating Subsidiary the assets and liabilities of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingbreast cancer detection business.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Verdad Telecom, Inc.), Stock Purchase Agreement (Mammatech Corp)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time time the directors of Purchaser have been elected to, and shall constitute a majority of, the Board of Directors of the Company pursuant to Section 1.3 (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timeit. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule SCHEDULE 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof, other than issuances of shares of Company Common Stock upon exercise of Options or Warrants outstanding as of the date of this Agreement;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,;
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),;
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens incurred in connection with any loans from Parent or one of its affiliates) or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreementpractice;
(viii) (A) incur any indebtedness for borrowed money (other than loans from Parent or one of its affiliates) or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its SubsidiariesCompany, or (B) make any loans loans, advances or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000500,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries Company is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied satisfied, except that, with respect to the condition set forth in Section 6.1(a), that such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Wolters Kluwer Us Corp)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from The Company covenants and agrees that between the date of this Agreement to and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (unless Parent shall otherwise agree a) as set forth in Schedule 5.1, (b) as specifically required pursuant to this Agreement, (c) as may be required by Law or (d) as consented to in writing and except as otherwise contemplated by this AgreementParent (which consent shall not be unreasonably withheld or delayed), the Company will shall, and shall cause each Company Subsidiary to, conduct its operations according to its businesses in all material respects in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timepractice. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or (a) as set forth on in Schedule 5.1, (b) as specifically required pursuant to this Agreement, (c) as may be required by Law or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld or delayed), the Company will not, covenants and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on agrees that between the date of this Agreement and in accordance with their present termsthe Effective Time or the date, issueif any, sellon which this Agreement is terminated pursuant to Section 8.1, grantthe Company shall not, dispose of, pledge or otherwise encumberand shall not permit any Company Subsidiary to:
(a) amend the Company Governing Documents, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock comparable organizational documents of any class Company Subsidiary;
(including the Shares)b) split, combine, subdivide or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for reclassify any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing authorize the right to subscribe for, any shares issuance of capital stock or (B) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereoffor shares of its capital stock;
(iic) declare, set aside or pay any dividend or make any other distribution payable in cash, stock or property (or any combination thereof) in respect of the capital stock of the Company or any Company Subsidiary, other than dividends or distributions by a direct or indirect wholly-owned Subsidiary of the Company to its stockholders;
(d) redeem, purchase or otherwise acquire, or propose offer to redeem, purchase or otherwise acquire, any Equity Interests, except from holders of its outstanding SharesCompany Options in full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of Company Options to the extent required under the terms of such Company Options;
(iiie) splitissue, combinesell, subdivide pledge, deliver, grant, transfer, dispose of or reclassify otherwise encumber or subject to any Lien any shares of, or securities convertible into or exchangeable for, or grant any Company Options or warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or any other Equity Interests, or grant to any Person any right the value of which is based on the value of Shares or declare, set aside for payment other capital stock or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as suchEquity Interests, other than dividends by a direct (i) the issuance of Shares reserved for issuance on the date hereof pursuant to the exercise of the Company Options and Company Warrants outstanding on the date hereof in accordance with their terms on the date hereof and (ii) the issuance of shares upon the exercise of the Top-Up Option;
(f) directly or indirect wholly owned Subsidiary indirectly acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any Person or all or substantially all of the assets of any Person (or business or division thereof);
(g) transfer, lease, license, sell, mortgage, pledge, dispose of, or otherwise encumber or subject to any Lien any of its assets, other than dispositions of immaterial tangible assets of the Company,
(iv) adopt a plan , including the disposition of complete obsolete or partial liquidationworn out equipment, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(viih) sell, lease, license, mortgage (i) incur or otherwise encumber assume any long-term or subject to any Lien or otherwise dispose of any of its properties or assetsshort-term indebtedness, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than short-term accounts payable made in the ordinary course of business consistent with past practice, or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (iii) make any loans, advances or capital contributions to, or investments in, any other person, Person (other than investments by the Company or in any direct or indirect wholly of its wholly-owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred Subsidiaries in the ordinary course of business consistent with past practice, ); or (iv) cancel any indebtedness or waive or assign any claims or rights of substantial value;
(i) except as required by the terms of any Benefit Plan or other contract in effect on the date hereof, (A) increase the compensation or benefits of, or agree to modify in pay any respectbonus to, any confidentialityParticipant, standstill or similar agreements to which the Companyother than, or any of its Subsidiaries is a party;
(xii) except in the ordinary course case of businessemployees below the level of Vice President, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended normal increases in cash compensation in the ordinary course of business consistent with past practice, (B) increase in grant any manner the Participant change of control, severance, retention or termination compensation or fringe benefits ofbenefits, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice)increase therein, (C) pay establish, adopt, enter into, amend or terminate any benefit not provided for collective bargaining agreement or Benefit Plan (including any Company Option or other award thereunder), (D) accelerate the time of payment or vesting of any rights or benefits, or make any material determinations, under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (DE) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock Company Options or other equity or equity-based or stock related awards, performance units or restricted stock), or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder(F) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; orprovided, however, the foregoing clauses shall not restrict the Company from entering into or making available to newly hired employees or to employees in the context of promotions, in each case in the ordinary course of business consistent with past practice, plans, agreements, benefits and compensation arrangements (including grants under the Company Stock Plan);
(xivj) (A) takeincur any capital expenditures or otherwise acquire any asset, or agree any obligations or commit to takeliabilities in respect thereof, in excess of $250,000, in the aggregate;
(k) enter into any action agreement or arrangement that would make any representation materially limits or warranty otherwise materially restricts the Company, or upon completion of the Company hereunder inaccurate at the Effective Time Transactions, Parent or its Subsidiaries or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area;
(except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (Bl) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate change in any material respect at any of the Effective Time (accounting methods used by it, except for representations such changes required by GAAP, applicable Laws or any Governmental Entity;
(m) make any material Tax election, settle any Tax dispute involving material amounts, file any amended Tax Return with respect to any material Tax or change any annual Tax accounting period;
(n) (x) pay, discharge, settle or satisfy any claim, liability, obligation or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), in each case made or pending against the Company, any Company Subsidiary, or any of their respective officers and warranties which speak directors, other than (1) the payment of short-term accounts payable in the ordinary course of business consistent with past practice, (2) the performance of payment obligations of the Company pursuant to the terms of any Company Agreement in effect as of a particular datethe date of this Agreement or entered into in compliance with this Section 5.1, and (3) the payment, discharge, settlement or satisfaction of claims, liabilities, obligations or litigation in the ordinary course of business consistent with past practice, (y) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, fail to enforce, or consent to any material matter with respect to which need be accurate only as of such date)consent is required under, provided however that any standstill or similar contract or agreement to which the Company shall or any Company Subsidiary is a party or (z) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, fail to enforce in any material respect, or consent to any material matter with respect to which consent is required under, any material confidentiality or similar contract or agreement to which the Company or any Company Subsidiary is a party;
(o) (i) enter into any contract or agreement that would be permitted to take or omit to take such action which can be cured, and in fact is cured, at or a Company Material Contract if it had been entered into prior to the Effective Time date of this Agreement or any Company IP Agreement or (Cii) taketerminate, amend, modify, renew or waive any material rights under any Company Material Contract;
(p) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company (other than the Merger);
(q) enter into any contract to the extent consummation of the Transactions or compliance by the Company with the provisions of this Agreement would conflict with, or agree result in a modification, violation or commit to take, any action that would result inbreach of, or is reasonably likely constitute a default under (with or without notice or lapse of time or both), or give rise to any right, including any right of termination, amendment, cancellation or acceleration under, or result in, in the creation of any Lien in or upon any of the conditions properties or other assets of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties Company or any of the Company's Board Company Subsidiaries under, or require Parent to license or transfer any of Directors its Intellectual Property Rights or other material assets under, or give rise to any increased, additional, accelerated, or guaranteed right or entitlements of any third party under, or result in any material alteration of, any material provision of such contract;
(r) enter into, terminate, amend, modify, renew or waive any material rights under any Company IP Agreement, or sell, transfer or license to any Person or otherwise adversely amend or modify any rights to any Intellectual Property Rights of the Company's stockholders under applicable lawCompany or any Company Subsidiary; or
(xvs) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any written agreement, contract, agreement, commitment or arrangement to do any of the foregoing, or authorize in writing any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except (i) as expressly provided in this Agreement, (ii) as set forth in the Disclosure Schedule, and (iii) as may be consented to in writing by Purchaser (such consent not to be unreasonably withheld or conditioned), Sellers shall assure that, after August 22, 2001, and prior to the Closing Date:
(a) the business of the Company shall be conducted in the same manner as heretofore conducted and only in the ordinary course;
(b) the Company shall not: (i) amend its certificate of incorporation or by-laws or similar organizational documents, (ii) issue, sell, transfer, pledge, dispose of or encumber any shares of any class or series of its capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, (iii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to any shares of any class or series of its capital stock, (iv) split, combine or reclassify any shares of any class or series of its stock, (v) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares, or (vi) make or authorize any capital expenditure in excess of $50,000 in any monthly period ended on Schedule 5.1, during the period from monthly anniversary of the date of this Agreement to the Effective Time hereof;
(unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), c) the Company will conduct its operations according to its shall not: (i) incur or assume any long-term debt, (ii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary and usual course of business and consistent with past practice and seek to preserve intact its current business organizationpractice, keep available or (iii) assume or guarantee the services obligations of its current officers and employees and preserve its relationships with customersany other Person, suppliers and others having business dealings with it to except in the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality ordinary course of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, business;
(d) the Company will not, and will shall not permit make any change in the compensation payable or to become payable to any of its Subsidiaries to, prior employees (other than normal recurring increases in the ordinary course of business or pursuant to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding Plan existing on the date hereof);
(iie) redeemthe Company shall not voluntarily permit any Insurance Policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated prior to the Closing Date without notice to Purchaser, purchase except policies providing coverage for losses not in excess of $500,000 which are replaced without diminution of or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Sharesgaps in coverage;
(iiif) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) Company shall not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vig) make the Company shall not change in any acquisitionmaterial respect any of the accounting methods used by it unless required by GAAP, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practiceas applicable;
(viih) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits ofshall not take, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, in any of the conditions of to the Merger Closing set forth in Article VI VII not being satisfied except thatsatisfied, with or would make any representation or warranty of Sellers contained herein inaccurate in any material respect at, or as of any time prior to, the Closing Date, or that would materially impair the ability of Purchaser or Sellers to consummate the condition set forth Closing in Section 6.1(a), such action shall be permitted if it is consistent accordance with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; orterms hereof or materially delay such consummation;
(xvi) authorizethe Company shall not sell, recommendlease, propose transfer, or announce an intention to do assign any of its assets, tangible or intangible, other than for a fair consideration in the foregoingordinary course of business;
(j) the Company shall not accelerate, terminate, modify or cancel any contractual obligation (or series of related contractual obligations);
(k) the Company shall not delay or postpone the payment of accounts payable and other liabilities outside the ordinary course of business; and
(l) the Company shall not enter into any agreement, contract, agreement, commitment or arrangement to do any of the foregoingthings described in Subsections (a) through (k) above.
Appears in 1 contract
Interim Operations of the Company. Except During the period from the date of this Agreement to the Closing Date, except with Purchaser's prior specific written consent or as set forth on Schedule 5.1expressly contemplated by this Agreement, Seller shall not take any action to cause the Company to operate its business other than in the ordinary and usual course consistent with past practices and to preserve intact its business organization and good will in all material respects. Additionally, during the period from the date of this Agreement to the Effective Time Closing Date, Seller shall not take any action to cause the Company to do any of the following and shall vote its Shares against any of the following to the extent a shareholder vote is taken (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:permitted in writing by Purchaser):
(i) except for the issuance amend its Certificate of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge Incorporation or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofBy-Laws;
(ii) issue, sell or authorize for issuance or sale, shares of any class of its securities (including, but not limited to, by way of stock split or dividend) or any subscriptions, options, warrants, rights or convertible securities, or enter into any agreements or commitments of any character obligating it to issue or sell any such securities;
(iii) redeem, purchase or otherwise acquire, directly or propose indirectly, any shares of its capital stock or any option, warrant or other right to redeem, purchase or otherwise acquire, acquire any of its outstanding Sharessuch shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete declare or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization pay any dividend or other reorganization of the Company distribution (whether in cash, stock or any of other property) with respect to its direct or indirect Subsidiaries (other than the Merger),capital stock;
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) voluntarily sell, leasetransfer, licensesurrender, mortgage abandon or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties assets or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
property rights (viii) (A) incur any indebtedness for borrowed money tangible or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advancesintangible), other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Companypractices;
(ixvi) make grant or agree to make any new capital expenditure mortgage or expenditures whichpledge or subject itself or any of its properties or assets to any lien, individuallycharge or encumbrance of any kind, is in excess of $100,000 or, in the aggregate, are in excess of $600,000except liens for taxes not currently due;
(xvii) make create, incur or assume any material tax election liability or settle or compromise any material income tax liability;
(xi) payindebtedness, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, except in the ordinary course of business consistent with past practice practices;
(viii) make or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included commit to make any capital expenditures exceeding in the Company SEC Reports aggregate Ten Thousand Dollars ($10,000);
(ix) become subject to any Guaranty;
(x) apply any of its assets to the direct or incurred indirect payment, discharge, satisfaction or reduction of any amount payable directly or indirectly to or for the benefit of Seller or any Affiliate of Seller or any Related Party or to the prepayment of any such amounts, other than compensation benefits, and expenses payable in the ordinary course of business to Seller and scheduled lease payments under leases listed on Schedule 4.1(i);
(xi) grant any increase in the compensation payable or to become payable to directors, officers or employees (including, without limitation, any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment);
(xii) except as listed on Schedule 7.1, enter into any material agreement or amend or terminate any existing material agreement, which is outside the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claimspractices;
(xiii) except as required to comply with applicable lawalter the manner of keeping its books, (A) adoptaccounts or records, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase change in any manner the compensation accounting practices therein reflected;
(xiv) except as set forth on Schedule 7.1, enter into any commitment or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, transaction other than in the ordinary course of business consistent with past practice, practices;
(Dxv) except as permitted in clause (B) abovedo any act, or for options included in omit to do any act, or permit to the representation extent within the Company's or the Seller's control, any act or omission to act which would cause a violation or breach of any of the representations, warranties or covenants of Seller set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan this Agreement;
(including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunderxvi) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund which has a material adverse effect on the condition (financial or otherwise), results of operations, assets, liabilities, properties, business or prospects of the Company, or on employee, customer or supplier relations;
(xvii) alter in any other way secure manner any of the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanCompany's existing working capital facilities; or
(xivxviii) (A) takeagree, whether in writing or agree or commit to takeotherwise, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Change of Control Date, the Company shall and the Seller and the Purchaser shall cause the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Change of Control Date, except as otherwise contemplated by required hereby in connection with this Agreement), neither the Company will conduct its operations according nor the Seller shall permit the Company to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchaser: (i) except amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options warrants or stock options outstanding on prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (A) any additional shares of capital stock of any class (including the Shares)whether in cash, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible intoproperty) with respect to the Common Stock, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisitioncreate, by means of mergerincur, consolidation assume, maintain or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject permit to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur exist any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or except as otherwise incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (Bvii) increase in any manner the compensation pay, discharge or fringe benefits ofsatisfy claims or liabilities (absolute, accrued, contingent or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (Cotherwise) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (Dviii) except as permitted in clause cancel any material debts or waive any material claims or rights, (Bix) abovemake any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for options included the liabilities or other commitments of any other Person, (xi) grant any increase in the representation set forth compensation payable or to become payable by the Company to any of its employees, officers or directors or any increase in Section 3.2, grant any awards under any bonus, incentiveinsurance, performance pension or other compensation plan employee benefit plan, payment or arrangement made to, for or Benefit Plan with any such employees, officers or directors, (including xii) enter into any employment contract or grant any severance or termination pay or make any such payment with or to any officer, director or employee of the grant Company, (xiii) alter in any material way the manner of stock optionskeeping the books, stock appreciation rights, stock based accounts or stock related awards, performance units or restricted stock, records of the Company or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) accounting practices therein reflected other than in the ordinary course of business consistent with past practicealterations or changes required by GAAP or applicable law, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) enter into any indemnification, contribution or similar contract pursuant to which the Company may be required to indemnify any other Person or make contributions to any other Person, (Axv) take, amend or agree or commit to take, terminate any action existing contracts in any manner that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate result in any material respect at liability to the Effective Time (except Company for representations and warranties which speak as of a particular date, which need be accurate only as or on account of such date), provided however that the Company shall be permitted to take amendment or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time termination or (Cxvi) takeor change any existing or adopt any new tax accounting principle, method of accounting or agree tax election except as provided herein or commit agreed to take, any action that would result in, or is reasonably likely to result in, any in writing by each of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingPurchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ascend Acquisition Corp.)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from From the date of this Agreement to hereof until the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement)Time, the Company will and the Company Subsidiaries shall conduct its operations according to its their business in the ordinary and usual course of business consistent with past practice and seek (except in connection with the Merger) shall use all commercially reasonable efforts to preserve intact its current their business organization, organizations and relationships with third parties and to keep available the services of its current their present officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timeemployees. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, from the Company will not, and will not permit any of its Subsidiaries to, prior to date hereof until the Effective Time, without the prior written consent of the Parent:
: (a) the Company will not, directly or indirectly, (i) except for the issuance of Shares upon the exercise of Options employee stock options outstanding on the date of this Agreement and in accordance with their present termshereof, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition transfer or pledge or agree to sell, transfer or pledge any treasury stock of the Company or any capital stock of any of the Company Subsidiaries beneficially owned by it; (ii) amend its Charter or Bylaws or similar organizational documents; or (iii) split, combine or reclassify the outstanding Shares or Preferred Stock or any outstanding capital stock of any of the Company Subsidiaries; (b) neither the Company nor any of the Company Subsidiaries shall: (i) declare, set aside or pay any dividend or other encumbrance distribution payable in cash, stock or property with respect to its capital stock, other than dividends paid by Company Subsidiaries to the Company in the ordinary course of business; (Aii) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class (including of the Shares)Company or the Company Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing other than Shares reserved for issuance on the right date hereof pursuant to subscribe for any shares the exercise of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares Company Options outstanding on the date hereof;
; (iiiii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any assets other than in the ordinary and usual course of business and consistent with past practice, or incur or modify any indebtedness or other liability, other than in the ordinary and usual course of business and consistent with past practice; or (iv) redeem, purchase or otherwise acquire, acquire directly or propose to redeem, purchase or otherwise acquire, indirectly any of its outstanding Shares;
capital stock; (c) neither the Company nor any of the Company Subsidiaries shall: (i) grant any increase in the compensation payable or to become payable by the Company or any of the Company Subsidiaries to any of its executive officers; or (ii) adopt any new, or amend or otherwise increase, or accelerate the payment or vesting of the amounts payable or to become payable under, any existing bonus, incentive compensation, deferred compensation, severance, profit sharing, stock option, stock purchase, insurance, pension, retirement or other employee benefit plan, agreement or arrangement; or (iii) splitenter into any employment or severance agreement with or, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution except in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary accordance with the existing written policies of the Company,
(iv) adopt a plan of complete , grant any severance or partial liquidationtermination pay to any officer, dissolution, merger, consolidation, restructuring, recapitalization director or other reorganization employee of the Company or any of its direct or indirect Subsidiaries the Company Subsidiaries; (other than d) neither the Merger),
(v) adopt Company nor any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
Company Subsidiaries shall permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated without notice to the Parent, except in the ordinary course of business and consistent with past practice; A-8 9 (vie) make neither the Company nor any acquisition, by means of merger, consolidation the Company Subsidiaries shall enter into any contract or otherwise, or disposition, transaction relating to the purchase of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past prior practice;
; (viif) sell, lease, license, mortgage or otherwise encumber or subject to neither the Company nor any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or Subsidiaries shall change any of its Subsidiariesthe accounting methods used by it unless required by GAAP, or (B) neither the Company nor any of the Company Subsidiaries shall make any loans or advances, other than material tax election except in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make change any material tax election or settle or compromise already made, adopt any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred accounting method except in the ordinary course of business consistent with past practice, change any material tax accounting method unless required by GAAP, enter into any closing agreement, settle any tax claim or waive assessment or consent to any benefits of, tax claim or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, assessment or any waiver of its Subsidiaries is a party;
the statute of limitations for any such claim or assessment; (xiig) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which neither the Company or nor any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company Subsidiaries shall: (i) incur or assume any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.long-term debt;
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from The Stockholders covenant and agree that after the date of this Agreement hereof and prior to the Effective Time Closing Date (unless Parent shall otherwise agree in writing and except as otherwise expressly contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of ParentBuyer, which consent will not be unreasonably withheld or delayed:
(ia) except for the issuance business of Shares upon the exercise Company will be conducted only in the Ordinary Course of Options outstanding on the date of this Agreement Business and in accordance compliance with their present termsapplicable laws, issueregulations, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofand contractual obligations;
(iib) redeem, purchase no change will be made in the articles of incorporation or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary bylaws of the Company;
(vic) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than no change will be made in the ordinary course authorized, issued or outstanding capital stock of business consistent with past practicethe Company, no additional securities of the Company will be issued and no subscriptions, options or other convertible securities, commitments or agreements relating to any of the securities of the Company will be issued, granted, created or entered into;
(viid) sellno dividend or other distribution or payment will be declared, leaseset aside, license, mortgage paid or otherwise encumber or subject to any Lien or otherwise dispose made in respect of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or otherwise, nor will the Company, directly or indirectly, repurchase, retire, redeem or otherwise acquire any securities of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or otherwise distribute any direct or indirect wholly owned Subsidiary profits of the Company;
(ixe) make the Company will not merge, amalgamate or agree consolidate with any corporation, or acquire all or substantially all of the business or assets of any other Person, business organization, entity or enterprise, or acquire ownership or control of any capital stock, bonds, or other securities of, or any property interest in, any business organization, entity or enterprise or acquire control of the management or policies thereof;
(f) except as set forth on Section 5.1 of the Disclosure Letter, the Stockholders shall cause the Company not to:
(i) enter into, create or assume (or in the case of clause (C) permit to make exist): (A) any new capital expenditure obligation or expenditures whichobligations for borrowed money or the deferred purchase price of any property (including under leases required to be capitalized under GAAP) other than in the Ordinary Course of Business or in an aggregate amount less than $25,000 (it being understood that the Company's maintaining a balance of less than $2,000,000 under its line of credit shall not be deemed to be a violation of this covenant); (B) any security agreement, individuallymortgage, is deed of trust, pledge, conditional sale or other title retention agreement other than in excess the Ordinary Course of $100,000 orBusiness as heretofore conducted; or (C) any Lien, other than Permitted Liens, upon any of its properties or assets whether now owned or hereafter acquired (other than, with respect to tangible property and assets, in the aggregate, are in excess Ordinary Course of $600,000Business as heretofore conducted);
(xii) other than in the Ordinary Course of Business, assume, guarantee, endorse or otherwise become liable with respect to the obligations of any Person, business organization, entity or enterprise, except for endorsements for collection of negotiable instruments in the Ordinary Course of Business as heretofore conducted;
(iii) make any material tax loan or advance to, or assume, guarantee, endorse or otherwise become liable with respect to the capital stock or dividends of, any Person, business organization, entity or enterprise except in the Ordinary Course of Business as heretofore conducted;
(iv) enter into any transaction with or create or assume any obligation or liability to, any Stockholder or any Affiliate, agent or relative of any Stockholder of the Company except in the Ordinary Course of Business;
(v) effect any increase or any other change in wages, salaries (out of the ordinary course), commissions, compensation, bonuses, incentives, pension or other benefits payable, or create, enter into or announce any new agreement, plan, program, policy or arrangement to pay pensions, retirement allowances or other employee benefits to any director or employee, whether past or present;
(vi) cancel or compromise any debt or claim, except in the Ordinary Course of Business as heretofore conducted, or waive any rights of substantial value;
(vii) change any of its banking arrangements or grant any powers of attorney;
(viii) make any Tax election or settle or compromise any material income tax Tax liability;
(ix) make any capital expenditures, except those made in the Ordinary Course of Business consistent with past practice which do not exceed $35,000 in the aggregate;
(x) other than in the Ordinary Course of Business as heretofore conducted, sell, lease, abandon, assign, transfer, license or otherwise dispose of or encumber any property, including Intellectual Property or any other intangible assets or any machinery, equipment or other operating property or tangible assets;
(xi) payenter into or assume any contract, dischargeagreement or commitment which, settle by reason of its size, term or satisfy any claimsother factor, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, is not in the ordinary course Ordinary Course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a partyBusiness as heretofore conducted;
(xii) delay the payment of its accounts payable except in the ordinary course Ordinary Course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;Business; or
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee planaction, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action any action, which can would have, or could reasonably be curedexpected to have, a material adverse effect on the Company.
(g) the Stockholders shall cause the Company to use its commercially reasonable efforts in a manner consistent with past practice to preserve the business organization of the Company intact and to keep available the services of the present employees and agents of the Company and to preserve the good will of customers, referral sources, suppliers, employees, agents, third-party payors and others having business relations with the Company;
(h) the Stockholders shall cause the Company to use its commercially reasonable efforts to maintain all assets owned, leased or regularly used by it in good operating condition and repair, ordinary wear and tear excepted, and will maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(i) the Stockholders shall cause the Company to maintain its books, accounts and records in fact is curedthe usual and ordinary manner, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is on a basis consistent with prior years; and
(j) the fiduciary duties Stockholders shall cause the Company to pay all registration, maintenance and renewal fees that are due or past due in connection with each item of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingIntellectual Property.
Appears in 1 contract
Samples: Stock Purchase Agreement (Curative Health Services Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1The Company covenants and agrees that, during the period from between the date of this Agreement to and the Effective Time (unless Parent shall otherwise agree in writing and Time, except as otherwise expressly contemplated by this Agreement)Agreement or as agreed to in writing by Holding, the Company and its Subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice practice, and seek the Company and its Subsidiaries will each use its best efforts to preserve intact its current business organization, to keep available the services of its current officers and employees and preserve its to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, suppliers carriers, lessors and others having business dealings relationships with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timeit. Without limiting the generality of the foregoing, and except as otherwise contemplated by expressly provided in this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries toAgreement, prior to the Effective Time, neither the Company nor any of its Subsidiaries will, without the prior written consent of ParentHolding:
(ia) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to amend its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Companylaws;
(vib) make any acquisitionauthorize for issuance, by means issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of mergeroptions, consolidation warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities, or disposition, amend any of assets the terms of any such securities or securities (other than agreements outstanding as of the Merger), in each case other than in the ordinary course of business consistent with past practicedate hereof;
(viic) sellsplit, leasecombine or reclassify any shares of its capital stock, licensedeclare, mortgage set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (except for its regular quarterly dividend), or redeem or otherwise encumber or subject to any Lien or otherwise dispose of acquire any of its properties securities or assetsany securities of its Subsidiaries;
(d) (i) incur or assume any long-term debt or, except sales in the ordinary course of business consistent with past practice and Liens under existing as lines of credit, incur or assume any short-term debt; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the date obligations of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than person except in the ordinary course of business consistent with past practiceand except for obligations of wholly owned Subsidiaries of the Company which, if incurred by the Company, would be permitted under clause (i) above; (iii) make any loans, advances or any capital contributions to, or investments in, any other person, person (other than the Company or any direct or indirect to wholly owned Subsidiary Subsidiaries of the Company);
(ixe) make enter into, adopt or agree (except as may be required by law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee, or (except for normal increases in the ordinary course of business that are consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense to make the Company) increase in any manner the compensation or fringe benefits of any director, officer of employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock options, stock appreciation rights or performance units) or enter into any contract, agreement, commitment or arrangement to do any of the foregoing;
(f) acquire, sell, lease or dispose of any assets outside the ordinary course of business or any assets which in the aggregate are material to the Company and its Subsidiaries taken as a whole or enter into any commitment or transaction outside the ordinary course of business;
(g) change any of the accounting principles or practices used by it, except as required by generally accepted accounting principles;
(h) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (ii) enter into any contract or agreement other than in the ordinary course of business; (iii) except as previously authorized by the Company and its Board of Directors, authorize any new capital expenditure or expenditures whichexpenditures; or (iv) enter into or amend any contract, individuallyagreement, is commitment or arrangement with respect to any of the matters set forth in excess of $100,000 or, in the aggregate, are in excess of $600,000this Section 5(i);
(xj) make any material tax election or settle or compromise any material income tax liability;
(xik) pay, discharge, settle discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, satisfaction in the ordinary course of business and consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) included in of the Company SEC Reports and its consolidated Subsidiaries or incurred in the ordinary course of business and consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (Al) take, or agree in writing or commit otherwise to take, any of the actions described in Sections 5.1
(a) through 5.1(k) or any action that which would make any representation of the representations or warranty warranties of the Company hereunder inaccurate at contained in this Agreement untrue or incorrect as of the Effective Time (except for representations and warranties which speak date when made or as of a particular date, which need be accurate only as of such date), (B) omit, future date or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, in any of the conditions of the Merger set forth in Article VI Sections 6.1 or 6.3 not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingsatisfied.
Appears in 1 contract
Interim Operations of the Company. Except (w) as set forth on Schedule 5.1required by applicable Law (including COVID-19 Measures) or any Order, (x) to comply with any notice from a Governmental Authority, (y) as expressly contemplated, required or permitted by this Agreement or (z) as is necessary in the good faith judgment of the Company to respond to any Emergency, during the period from the date of this Agreement to until the Effective Time (Closing, unless Parent shall the Buyer otherwise agree consents in writing and except as otherwise contemplated by this Agreement(such consent not to be unreasonably withheld, conditioned or delayed), (i) the Company will conduct shall, and shall cause its operations according to its Subsidiaries to, operate their businesses in all material respects in the ordinary and usual course of business consistent with past practice and seek to maintain and to use their commercially reasonable efforts to preserve intact in all material respects its current business organization, keep available the services of its current officers and employees and preserve its their existing relationships with its customers, suppliers employees, independent contractors and others other business relationships having material business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit or any of its Subsidiaries and (ii) the Company shall not, and shall cause its Subsidiaries not, to, prior to the Effective Time, without the prior written consent of Parent:
(ia) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge sell or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge grant any shares of its capital stock or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares)equity or voting interests, or any securities or rights exercisable for, exchangeable for or convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, or that have a value based on the price or value of, any shares of its capital stock or (B) any other securities in respect of, in lieu ofequity or voting interests, or any rights, warrants or options to purchase any shares of its capital stock or other equity or voting interests other than (i) the authorization and issuance of the Purchased Shares in substitution for, accordance with this Agreement and the Certificate of Designations and the authorization of any Conversion Shares outstanding on the date hereof;
or (ii) redeem, purchase or otherwise acquirethe issuances of capital stock, or propose to redeemsecurities exercisable for, purchase exchangeable for or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization convertible into capital stock of the Company (1) to newly-hired or any of its direct newly-promoted employees or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, consultants in the ordinary course of business consistent with past practice or in accordance with their terms(2) to any director, officer, employee or independent contractor of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred any of its Subsidiaries in the ordinary course of business consistent with past practicepractice pursuant to any Company Stock Plan (or agreement thereunder) in effect as of the date hereof or pursuant to equity awards or obligations outstanding on the date of this Agreement or granted after the date of this Agreement not in violation of this Agreement; provided, that in the event of any such issuance or sale in response to any Emergency pursuant to clause (z) in this Section 4.1, the Buyer shall have the right to participate in such issuance or sale on the terms set forth in Section 4.15 as if the Closing had already occurred.
(b) except for regular quarterly dividends of the Company in an amount not to exceed $0.04 per quarter, establish a record date for, declare, set aside for payment or pay any dividend on, or waive make any benefits other distribution in respect of, any shares of its capital stock or agree to modify in other equity or voting interests;
(c) split, combine, subdivide, recapitalize or reclassify any respect, any confidentiality, standstill shares of its capital stock or similar agreements to which other equity or voting interests;
(d) (i) merge or consolidate the Company, Company or any of its Subsidiaries is with any other Person, except for any such transactions solely among wholly-owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries, or (ii) commence or file any petition seeking (A) liquidation, reorganization or other relief under any U.S. Federal, U.S. state or other bankruptcy, insolvency, receivership or similar Laws or (B) the appointment of a partyreceiver, trustee, custodian, sequestrator, conservator or similar official;
(xiie) except sell, lease, license, sub-license or otherwise dispose of, or otherwise encumber (other than in respect of any Permitted Lien), any of its properties, rights or assets, other than (i) sales, leases, licenses, sub-licenses or other dispositions of properties, inventory, rights or assets in the ordinary course of business, modify(ii) sales, amend leases, licenses, sub-licenses or terminate any contract other dispositions of properties, rights or agreement assets with a value of less than $75,000,000 in the aggregate, (iii) sales of obsolete assets or (iv) Liens incurred pursuant to which the Company Credit Agreement or any of its Subsidiaries is a party, or waive, release or assign any rights or claimsamendments thereto;
(xiiif) except as required amend or supplement the Company Organizational Documents in a manner that is adverse to comply with applicable law, (A) adopt, enter into, terminate the Buyer in any material respect or amend make any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits material amendments to the organizational documents of any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanCompany’s Subsidiaries; or
(xivg) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Investment Agreement (Knoll Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing The Company covenants and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end agrees that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in accordance with their present termsSchedule 5.1, issue(b) as specifically required pursuant to this Agreement, sell, grant, dispose of, pledge (c) as may be required by Law or otherwise encumber, (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Sharesdelayed), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of shall, and shall cause each Company Subsidiary to, conduct its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or businesses in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than all material respects in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, except (a) as set forth in Schedule 5.1, (b) as specifically required pursuant to this Agreement, (c) as may be required by Law or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld or delayed), the Company covenants and agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, and shall not permit any Company Subsidiary to:
(a) amend the Company Governing Documents, or the comparable organizational documents of any Company Subsidiary;
(viib) split, combine, subdivide or reclassify any shares of its capital stock or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(c) declare, set aside or pay any dividend or make any other distribution payable in cash, stock or property (or any combination thereof) in respect of the capital stock of the Company or any Company Subsidiary, other than dividends or distributions by a direct or indirect wholly-owned Subsidiary of the Company to its stockholders;
(d) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Equity Interests, except from holders of Company Options in full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of Company Options to the extent required under the terms of such Company Options;
(e) issue, sell, leasepledge, licensedeliver, mortgage grant, transfer, dispose of or otherwise encumber or subject to any Lien any shares of, or otherwise dispose securities convertible into or exchangeable for, or grant any Company Options or warrants, calls, commitments or rights of any kind to acquire, any shares of its properties capital stock of any class or assetsany other Equity Interests, except sales in or grant to any Person any right the ordinary course value of business consistent with past practice and Liens existing as which is based on the value of Shares or other capital stock or any other Equity Interests, other than (i) the issuance of Shares reserved for issuance on the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights hereof pursuant to acquire any debt securities the exercise of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in Options and Company Warrants outstanding on the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or date hereof in accordance with their terms, terms on the date hereof and (ii) the issuance of liabilities reflected or reserved against in, or contemplated by, shares upon the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director exercise of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.Top-Up Option;
Appears in 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Interim Operations of the Company. Except Prior to the Closing Date or the earlier termination of this Agreement, except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except 7.1 or as otherwise expressly contemplated by this Agreement), unless Purchaser has previously consented in writing thereto, neither Holdings nor the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parentshall:
(a) incur any Indebtedness or issue any long-term debt securities or assume, guarantee or endorse such obligations of any other Person, except for (i) except for Indebtedness incurred in the issuance Ordinary Course of Shares upon Business under the exercise lines of Options outstanding credit as in effect on the date hereof and (ii) Indebtedness of this Agreement not more than $20,000,000 incurred under the lines of credit as in effect on the date hereof solely for the purpose of payment of a cash dividend in like amount from the Company to Holdings and from Holdings to the Members (the “Recapitalization”), or make any loan or advance to any Person (other than business-related advances to employees in the Ordinary Course of Business and in accordance with their present terms, issuean amount not in excess of $5,000 per employee or $25,000 in the aggregate);
(b) (i) acquire, sell, grantlicense, abandon, fail to maintain or otherwise dispose of, pledge any material property or otherwise encumberassets (other than Rental Equipment), tangible or intangible (other than in the Ordinary Course of Business), (ii) mortgage or encumber any property or assets, other than Permitted Liens, or authorize (iii) cancel any Indebtedness owed to or propose claims held by the issuanceCompany (other than in the Ordinary Course of Business);
(c) engage in any transactions with, saleor enter into any Contracts with, disposition any Affiliates of the Company or pledge any Member, or other encumbrance any of their members, officers or directors, except pursuant to a Contract in effect on the date hereof and disclosed pursuant to Section 4.20;
(Ad) make any additional shares material change to its accounting (including Tax accounting) methods, principles or practices, except as may be required by GAAP;
(e) make any amendment to its certificate of capital stock incorporation or bylaws (or equivalent organizational documents);
(f) declare, distribute or set aside for distribution of any class property (including the Sharesexcluding cash), or any securities directly or rights convertible intoindirectly, exchangeable forredeem, purchase or evidencing the right to subscribe for otherwise acquire of any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iig) redeemrepurchase any equity securities, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as suchor, other than dividends by a direct in connection with the Recapitalization, effect any recapitalization, reclassification or indirect wholly owned Subsidiary like change in the capitalization of the Company,
(iv) adopt a plan of complete Holdings or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vih) make except as required by Law or by any acquisition, by means of merger, consolidation or otherwiseEmployee Plans, or dispositionexisting contractual arrangements as in effect on the Balance Sheet Date, of assets adopt or securities (amend any Employee Plan or other than plan, program or arrangement for the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any benefit of its properties employees, consultants or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariesdirectors, or (B) grant any material increase (other than increases required under any Contract entered into before the Balance Sheet Date and annual or periodic increases in the Ordinary Course of Business, consistent with past practice) in the compensation of its employees, officers or directors (including any such increase pursuant to any bonus, profit sharing or other compensation or incentive plan, program or commitment);
(i) enter into, amend or terminate any labor or collective bargaining Contract of the Company, or otherwise make any loans commitment or advancesincur any liability to any labor organizations;
(j) enter into or agree to enter into any merger or consolidation with any Person, or acquire the equity securities or all or substantially all of the assets of, or otherwise make any investment in, any other Person;
(k) enter into, terminate or modify any Material Contract, other than in the ordinary course Ordinary Course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the CompanyBusiness;
(ixl) make or agree to make any new capital expenditure or expenditures which, individually, is forward purchase commitment in excess of $100,000 or, in the aggregate, are in excess requirements of $600,000the Company for normal operating purposes or at prices higher than the current market prices;
(xm) make any material tax election or settle or compromise any material income tax liabilityAction if the amount of such settlement will not be paid in full prior to the Closing or which settlement or compromise would reasonably be expected to have a continuing adverse impact on the business of the Company after the Closing;
(xin) pay, discharge, settle make any Tax election or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, change in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (a Tax election or the notes thereto) included filing for any change of any method of accounting with any relevant Taxing Authority, except as required by any change in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a partyLaw;
(xiio) except in implement any layoff of employees that would implicate the ordinary course WARN Act;
(p) transfer, issue or sell any equity securities or rights to purchase any equity securities of business, modify, amend Holdings or terminate any contract or agreement to which the Company or any of its Subsidiaries is a partysplit, combine or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, subdivide the capital stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director equity securities of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, Holdings or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanCompany; or
(xivq) (A) takeagree, whether in writing or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omitotherwise, to take any action necessary to prevent any such representation or warranty from being inaccurate described in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in this Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing7.1.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1(a) The Company covenants and agrees that, during the period from after the date of this Agreement hereof and prior to the Effective Time (unless Parent the Acquiror shall otherwise agree approve in writing writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement), including, but not limited to, paragraph (b) of this Section 6.1): AGREEMENT AND PLAN OF REORGANIZATION - 23
(i) the business of the Company shall be conducted in the ordinary and usual course and, to the extent consistent therewith, the Company will conduct shall use its operations according best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(ii) the Company shall not (i) amend its Articles of Incorporation or Bylaws or amend, modify or terminate any stock option plan or Company Employee Benefit Plan, except as described in 6.1(a)(iv) below; (ii) split, combine or reclassify its outstanding shares of capital stock; (iii) declare, set aside or pay any dividend payable in cash, stock, or property in respect of any capital stock; or (iv) repurchase, redeem or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) the Company shall not (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any other property or assets); (ii) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other material property or assets or incur or modify any material indebtedness or other material liability; or (iii) make any commitments for, make or authorize any capital expenditures other than in the ordinary and usual course of business consistent with past practice or, by any means, make any acquisition of, or investment in, assets or stock of any other person or entity;
(iv) the Company shall not terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any stock option plan or Company Employee Benefit Plan. In addition, the Company shall not increase the salary, wage, bonus or other compensation of any employees except increases occurring in the ordinary and seek usual course of business (which shall include normal periodic performance reviews and related compensation and benefit increases);
(v) the Company shall not settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate any of the Company Material Contracts or waive, release or assign any material rights or claims;
(vi) the Company shall not make any tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to preserve intact its current business organization, keep available be canceled or terminated except in the services ordinary and usual course of its current officers business;
(vii) the Company shall not take any action or omit to take any action that would cause any of the representations and employees and preserve its relationships with customers, suppliers and others having business dealings with it warranties of the Company herein to the end that their goodwill and ongoing businesses shall be unimpaired become untrue in any material respect at respect; and AGREEMENT AND PLAN OF REORGANIZATION - 24
(viii) the Effective Time. Without limiting the generality Company shall not authorize or enter into an agreement to do any of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, .
(b) Notwithstanding anything herein to the Company will not, and will not permit any of its Subsidiaries tocontrary, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments shall take all action necessary to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing ensure that there are no Company Convertible Securities outstanding as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingTime.
Appears in 1 contract
Samples: Merger Agreement (Euromed Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from 5.3:
(a) From the date of this Agreement hereof to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement)Closing, the Company will, and will cause its Subsidiary to, conduct its operations according to its business only in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoingpractices, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not cause or permit its Subsidiary to, engage in any practice, take or fail to take any action or enter into any transaction which would otherwise cause any of the representations and warranties contained in Article 4 to become untrue, unless Parent and Merger Sub gives their prior written approval. In addition, except as set forth on Schedule 5.3, neither the Company nor its Subsidiaries to, prior Subsidiary may do or cause to be done any of the Effective Time, following without the prior written consent approval of ParentParent and Merger Sub:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge amend or otherwise encumberchange its articles of incorporation or bylaws, or authorize other constituting or propose the issuancegoverning documents, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on after the date hereof;
(ii) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stock or issue, grant or enter into any subscription, option, warrant, right, convertible security or other agreement or commitment of any character obligating the Company or its Subsidiary to issue securities, other than shares issued pursuant to the exercise of stock options outstanding as of the date of this Agreement;
(iii) declare, set aside, make or pay any dividend or other distribution with respect to its securities;
(iv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Sharessecurities;
(iiiv) splitauthorize any capital expenditures or sell, combinepledge, subdivide dispose of or reclassify any Shares or declare, set aside for payment or pay any dividendencumber, or make agree to sell, pledge, dispose of or encumber, any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization assets of the Company or any Subsidiary except for sales of its direct or indirect Subsidiaries (other than inventory in the Merger),
(v) adopt any amendments to its Certificate ordinary course of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Companybusiness;
(vi) make any acquisition, acquire (by means of merger, consolidation share exchange, consolidation, combination or acquisition of stock or assets) all or any part of another Person or enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(vii) incur any indebtedness for borrowed money, issue any debt securities or enter into or modify any contract, agreement, lease, commitment or arrangement with respect thereto;
(viii) except for transactions contemplated to be performed under this Agreement, enter into any contract, agreement, lease or commitment which if entered into before the date of this Agreement would be a Material Contract, or amend or terminate any existing Material Contract, or any other contract, agreement, lease or commitment entered into after the date of this Agreement which if entered into before the date of this Agreement would be a Material Contract;
(ix) enter into, amend or terminate any employment or consulting agreement with any director, officer, consultant or Key Employee of the Company or its Subsidiary, or enter into, amend or terminate any employment agreement or arrangement with any other person other than in the ordinary course of business consistent with past practice, or take any action with respect to the grant or payment of any severance or termination pay other than pursuant to policies or agreements of the Company and its Subsidiary in effect on the date hereof and described in Schedule 4.19(a);
(x) enter into, extend or renew any lease for equipment, office space or other space or any other lease;
(xi) fail to pay any accounts payable of the Company or its Subsidiary in accordance with their terms;
(xii) accelerate the collection of, or sell or otherwise transfer, any Accounts Receivable;
(xiii) except as required by law, adopt, amend or terminate any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any Employee or any Officer of the Company or its Subsidiary, or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity;
(xiv) pay (except for salary under existing employment arrangements, advances to salesmen in the ordinary course of business, and directors' fees under standard terms in effect prior to the date hereof), loan or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of their officers or directors or any affiliate, associate or near relative of any of their officers or directors;
(xv) write down (or write up) the value of any inventory or write off as uncollectible any Accounts Receivable;
(xvi) cancel any debts or waive any claims or rights or cancel or terminate any Material Contract;
(xvii) dispose of or permit to lapse any rights to the use of any patent, trademark, trade name, copyright or other intangible asset, or dispose of or disclose to any Person any trade secret, formula, process or know-how not theretofore a matter of public Knowledge;
(xviii) change any of the banking or safe deposit arrangements described in Schedule 4.27 hereto;
(xix) grant or extend any power of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise, in respect of the obligation of any Person;
(xx) make any change in financial or dispositiontax accounting methods, principles or practices or make or cause to be made any elections on Tax Returns of assets the Company or securities its Subsidiary, unless required by GAAP or applicable law;
(other than xxi) take any action that could reasonably be expected to prevent or impede the Merger)Merger from qualifying as a reorganization under Section 368(a) of the Code;
(xxii) extend credit in the sale of products, in each case collection of receivables or otherwise, other than in the ordinary course of business consistent with past practice;
(viixxiii) sellfail to maintain its books, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales accounts and records in the usual, regular and ordinary course of business manner on a basis consistent with past practice and Liens existing as of the date of this Agreementprior years;
(viiixxiv) adopt or amend in any material respect any collective bargaining agreement or Benefit Plan or Employee Arrangement other than as required by law;
(Axxv) incur grant any indebtedness for borrowed money or guarantee any such indebtedness of another personincrease in compensation, or issue grant or sell make any debt securities or warrants bonus or other rights compensatory payments, to acquire any debt securities director, officer, Key Employee or consultant of the Company or its Subsidiary;
(xxvi) grant any increase in compensation to any other employee of the Company or its SubsidiariesSubsidiary, or (B) make any loans or advances, other than except in the ordinary course of business consistent with past practice;
(xxvii) make or revoke any Tax election that could reasonably be expected to have a Company Material Adverse Effect, or compromise any capital contributions toTax liability;
(xxviii) sell, license, exchange, mortgage, pledge, hypothecate, transfer or investments in, otherwise dispose of any other personof its assets, other than the Company or any direct or indirect wholly owned Subsidiary sale of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, inventory in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planpractices; or
(xivxxix) (A) takeagree, whether or agree or commit to takenot in writing, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(b) From the date hereof to the Closing, the Company will, and, except to the extent provided for by any transaction contemplated to be performed under this Agreement, will cause its Subsidiary to, use its best efforts to:
(i) preserve intact the business organization of the Company and its Subsidiary;
(ii) to keep available the services of their present officers and employees;
(iii) to preserve intact their banking relationships and credit facilities;
(iv) to preserve intact their relationships with their customers and vendors and to preserve the goodwill of those having business relationships with them;
(v) to comply with all applicable laws;
(vi) preserve its assets, properties and rights necessary or advisable to the conduct of its business;
(vii) pay when due all Taxes lawfully levied or assessed against it before any penalty or interest accrues on any unpaid portion thereof and to file all Tax Returns when due;
(viii) perform all of its obligations under all contracts, agreements or commitments to which it is a party or subject or by which it is bound; and
(ix) keep in full force and effect all of those insurance policies listed on Schedule 4.23 or, if any of those insurance policies expire or terminate, obtain, and maintain policies of insurance substantially similar to those expired or terminated policies (both in terms of coverage and amount of coverage).
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from (a) From and after the date of this Agreement to until the Effective Time (Time, except as contemplated by any other provision of this Agreement, unless Parent shall otherwise agree the Purchaser has consented in writing and except as otherwise contemplated by this Agreement)thereto, the Company will Company:
(i) shall conduct its operations according to its usual, regular and ordinary and usual course of business consistent with past practice and seek in substantially the same manner as heretofore conducted;
(ii) shall use its reasonable efforts to preserve intact its current business organizationorganization and goodwill, keep available the services of its current officers and employees and preserve its maintain satisfactory relationships with customers, suppliers and others those persons having business dealings relationships with it it;
(iii) shall not amend its Certificate of Incorporation or Bylaws or comparable governing instruments;
(iv) shall promptly notify the Purchaser of any breach of any representation or warranty contained herein or any Material Adverse Change with respect to the end that their goodwill Company;
(v) shall promptly deliver to the Purchaser true and ongoing businesses correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement;
(A) shall be unimpaired not, except pursuant to the exercise of options, warrants, conversion rights and other contractual rights existing on the date hereof and disclosed pursuant to this Agreement, issue any shares of its capital stock, effect any stock split or otherwise change its capitalization as it existed on the date hereof and (B) shall not (x) grant, confer or award any option, warrant, conversion right or other right not existing on the date hereof to acquire any shares of its capital stock or grant, confer or award any bonuses or other forms of cash incentives to any officer, director or key employee, (y) except in the ordinary course of business consistent with past practice, increase any compensation with any present or future officers, directors or key employees, grant any severance or termination pay to, or enter into any employment or severance agreement with any officer, director or key employee or amend any such existing agreement in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior (other than pursuant to severance agreements previously delivered to the Effective TimePurchaser), without the prior written consent of Parent:or (z) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect;
(vii) shall not (i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance declare, set aside or pay any dividend or make any other distribution or payment with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right respect to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities other ownership interests or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) directly or indirectly redeem, purchase or otherwise acquireacquire any shares of its capital stock or make any commitment for any such action;
(viii) shall not sell, or propose to redeemlease, purchase abandon or otherwise acquire, dispose of any of its outstanding Shares;
(iii) split, combine, subdivide assets or reclassify any Shares acquire by merging or declare, set aside for payment or pay any dividendconsolidating with, or make by purchasing a substantial portion of the assets of or equity in, or by any other actualmanner, constructive any business or deemed distribution in respect of any Shares corporation, partnership, association or other business organization or division thereof or otherwise make acquire any payments to stockholders in their capacity as suchassets, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than except in the ordinary course of business consistent with past practice;
(viiix) sell, lease, license, mortgage shall not incur or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur guarantee any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans loans, advances or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, or issue or sell any debt securities other than borrowings under existing lines of credit and usual and customary advancement of expenses in the Company ordinary course of business;
(x) shall not mortgage or otherwise encumber or subject to any direct lien any of its properties or indirect wholly owned Subsidiary assets;
(xi) shall not make any change to its accounting (including tax accounting) methods, principles or practices, except as may be required by generally accepted accounting principles and except, in the case of tax accounting methods, principles or practices, in the ordinary course of business of the Company;
(ixxii) make or agree to shall not make any new commitment or enter into any contract or agreement or make any capital expenditure except for (x) customer purchase orders and purchases of raw materials used in the business of the Company agreed to or expenditures whichmade in the ordinary course of business consistent with past practice, individually(y) any other commitment, is contract and agreement involving aggregate payments to or by the Company not in excess of $100,000 or100,000, providing for termination without notice by the Company on 90 or fewer days' notice, and made by the Company in the aggregate, are ordinary course of business consistent with past practice or (z) capital expenditures that individually or in excess of the aggregate do not exceed $600,000100,000;
(xxiii) shall not revalue any of its assets, including, without limitation, writing down the value of its inventory or writing off notes or accounts receivable, other than in the ordinary course of business;
(xiv) shall not make any material tax election except consistent with past practice or settle or compromise any material income tax liability;
(xixv) shall not settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xvi) shall not pay, discharge, settle discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in of the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xivxvii) (A) shall not agree or otherwise commit to take any of the foregoing actions or take, or agree or commit to take, any action that which would make any representation or warranty result in a failure of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit condition to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition Closing set forth in Section 6.1(a6.3(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Firecom Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during During the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Time, except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated specifically permitted by this Agreement or as set forth on Schedule 5.1SCHEDULE 6.01, or as otherwise consented to in writing by Purchaser, the Company will not, and will not permit any of its Subsidiaries cause each Company Subsidiary to, prior to the Effective Time, without the prior written consent of Parent:
(a) use all reasonable efforts (consistent with operating in the ordinary course of business) to (i) except for preserve intact its present business organization, (ii) keep available the issuance services of Shares upon its present officers and employees, (iii) preserve its relationships with clients, suppliers, customers, distributors and others having business dealings with it, (iv) maintain all assets other than those disposed of in the exercise ordinary course of Options outstanding on business in good repair and condition, (v) maintain all insurance, and (vi) maintain its books of account and records in the date of this Agreement usual, regular and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofordinary manner;
(iib) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to not amend its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring other governing document or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Companyagreement;
(vic) make any acquisition, not acquire by means of merger, consolidation merging or otherwiseconsolidating with, or dispositionpurchasing all or substantially all of the assets of, or otherwise acquiring, any business of assets any corporation, partnership, association or securities (other than the Merger)business organization or division thereof, in each case for consideration having a value in excess of $500,000 or an aggregate value in excess of $1,000,000;
(d) not split, combine or reclassify its outstanding capital stock or declare, set aside, make or pay any dividend or other distribution in respect of its capital stock (in cash or otherwise) other than dividends paid by the Company's wholly-owned Subsidiaries to the Company or its wholly-owned Subsidiaries;
(e) not issue or sell (or agree to issue or sell) any shares of its capital stock of any class or series, or any options, warrants, conversion or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares (other than upon the exercise or conversion of options, warrants or convertible securities outstanding on the date hereof), or grant, or agree to grant, any such options or modify or alter the terms of any of the above, except as contemplated under Section 2.06;
(f) not (i) incur any indebtedness for borrowed money other than a net increase after the date hereof of up to $10 million in the aggregate pursuant to the terms of credit agreements in effect on the date hereof or vary the material terms of any existing debt securities, (ii) issue or sell any debt securities, (iii) acquire or dispose of any assets (other than acquisitions and dispositions of goods purchased for resale in the ordinary course of business) having a book or market value individually in excess of $100,000, or (iv) enter into, modify in any material respect or terminate any Contract (other than with respect to Contracts involving purchases of diesel fuel, gasoline and hedging contracts in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.past
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Travelcenters of America Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Company shall conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
a majority in interest of the Investors, (i) except amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for issuance or sale (including, but not limited to, by way of stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the issuance conversion of Shares upon shares of preferred stock or the exercise of Options outstanding on warrants or outstanding stock options or bonuses granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisitioncreate, by means of mergerincur, consolidation assume, maintain or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject permit to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur exist any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or except as otherwise incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (Bvii) increase in any manner the compensation pay, discharge or fringe benefits ofsatisfy claims or liabilities (absolute, accrued, contingent or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (Cotherwise) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (Dviii) except as permitted in clause cancel any material debts or waive any material claims or rights, (Bix) abovemake any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for options included the liabilities or other commitments of any other Person, (xi) grant any increase in the representation set forth compensation payable or to become payable by the Company to any of its employees, officers or directors or any increase in Section 3.2, grant any awards under any bonus, incentiveinsurance, performance pension or other compensation plan employee benefit plan, payment or arrangement made to, for or Benefit Plan with any such employees, officers or directors, (including xii) enter into any employment contract or grant any severance or termination pay or make any such payment with or to any officer, director or employee of the grant Company, (xiii) alter in any material way the manner of stock optionskeeping the books, stock appreciation rights, stock based accounts or stock related awards, performance units or restricted stock, records of the Company or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) accounting practices therein reflected other than in the ordinary course of business consistent with past practicealterations or changes required by GAAP or applicable law, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) enter into any indemnification, contribution or similar contract pursuant to which the Company may be required to indemnify any other Person or make contributions to any other Person, (Axv) take, amend or agree or commit to take, terminate any action existing contracts in any manner that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate result in any material respect at liability to the Effective Time (except Company for representations and warranties which speak as of a particular date, which need be accurate only as or on account of such date)amendment or termination or (xvi) or change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided however that herein or agreed to in writing by the Investors. Among other things, the Company shall be permitted to take or omit agrees to take such action which can actions as may be cured, and in fact is cured, at or prior necessary to suspend the Effective Time or (C) take, or agree or commit automatic grants of stock options to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingdirectors.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1The Company agrees that, during the period from the date of this Agreement to the Effective Time earlier of (unless Parent shall otherwise agree x) termination of this Agreement in writing accordance with Section 9.1, and (y) Closing, except as otherwise contemplated by this Agreement), or as consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) the Company will shall use commercially reasonable efforts to conduct its operations according business in the Ordinary Course and in compliance in all material respects and, to its ordinary and usual course of business the extent consistent with past practice and seek the foregoing, use its commercially reasonable efforts to (i) preserve intact its current present business organization, (ii) keep available the services of its current directors, officers and key employees and preserve its (iii) maintain existing relationships with customersits Material Customers, suppliers Material Suppliers and others having Material Content Providers and other material business dealings relationships with it to it; and
(b) the end that their goodwill and ongoing businesses Company shall be unimpaired in not effect any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parentfollowing:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and make any change in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right amendment to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofits Organizational Documents;
(ii) redeemissue or sell, or authorize to issue or sell, any membership interests, shares of its capital stock or any other ownership interests, as applicable, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or otherwise acquiresubscribe for, or propose enter into any Contract with respect to redeem, purchase the issuance or otherwise acquiresale of, any shares of its outstanding Sharesmembership interests, capital stock or any other ownership interests, as applicable (for the avoidance of doubt, this Section 6.1(b)(ii) shall not prevent (a) a Company Optionholder from otherwise exercising any or all vested Company Options held by such Company Optionholder in accordance with the applicable award agreement, (b) the granting of Company Options to new employees, officers or directors in the Ordinary Course (provided that such grants of Company Options do not include any single- or double-trigger acceleration provisions) or (c) the conversion of the Company Preferred Stock into Company Common Stock in connection with CoD Amendment as contemplated herein);
(iii) split, combine, subdivide redeem or reclassify reclassify, or purchase or otherwise acquire, any Shares membership interests, shares of its capital stock or any other ownership interests, as applicable;
(iv) sell, lease, license, permit to lapse, transfer, abandon or otherwise dispose of any of its properties or assets (including any Company Owned Intellectual Property) that are material to its business, other than non-exclusive licenses of Company Owned Intellectual Property granted in the ordinary course;
(v) amend in any adverse respect, terminate or extend any Company Material Contract or Lease or enter into a Contract or Lease which, had it been entered into prior to the date hereof, would have been a Company Material Contract or Lease;
(vi) (A) incur any Indebtedness in excess of $250,000, other than short-term Indebtedness or letters of credit incurred in the Ordinary Course or borrowings under existing credit facilities, or (B) make any loans or advances to any other Person;
(vii) (A) grant or agree to grant to any employee, officer, director or independent contractor of the Company any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, change in control, retention, insurance or other compensation or benefits, except Ordinary Course annual merit increases or as required by applicable Law, (B) except as adopted in the Ordinary Course or as required by applicable Law, adopt or establish any new compensation or employee benefit plans or arrangements, or amend or terminate, or agree to amend or terminate, any existing Company Benefit Plans or PEO Plans, (C) accelerate the time of payment, vesting or funding of any compensation or benefits under any Company Benefit Plan (including any plan or arrangement that would be a Company Benefit Plan if it was in effect on the date hereof), other than set forth on Schedule 6.1(b)(vii), (D) make any bonus or incentive payments to any employee or officer outside of the currently effective bonus plan as has been made available to Parent and otherwise outside the Ordinary Course (for the avoidance of doubt, this Section 6.1(b)(vii) shall not prevent the granting of Company Options in accordance with Section 6.1(b)(ii) to new hires), (E) enter into any new employment, consulting or other compensation agreement (x) for which the annual base compensation to be paid is greater than $200,000 or (y) which is not terminable upon notice and without liability to the Company, except (1) as may be required under applicable Law, (2) as required pursuant to the Company Benefit Plans or collective bargaining agreements of the Company in accordance with their existing terms as in effect on the date hereof, (3) for payment of any accrued or earned but unpaid compensation, or (4) pursuant to employment, retention, change-of-control or similar type Contracts existing as of the date hereof, provided to Parent on or prior to the date hereof and set forth on Schedule 3.16(a), (F) modify in any material respect the terms of any existing employment, consulting or other compensation agreement, (G) terminate the employment or service of any employee or independent contractor whose total annual base compensation exceeds $200,000, other than for cause, or (H) hire any employee or independent contractor whose total annual base compensation exceeds $200,000;
(a) make, change or rescind any material Tax election, (b) settle or compromise any claim, notice, audit report or assessment in respect of any material Taxes, (c) file any amended Tax Return or claim for a material Tax refund, (d) surrender any right to claim a refund of material Taxes, (e) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, or closing agreement related to any Tax (excluding any agreement entered into the Ordinary Course and not primarily related to Taxes), (f) fail to pay any Taxes that becomes due and owing, other than Taxes being contested in good faith through appropriate proceedings, and for which adequate reserves have been established in accordance with GAAP, (g) request any Tax ruling from a competent authority or, (h) except in the Ordinary Course, consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(ix) cancel or forgive any Indebtedness in excess of $100,000 owed to the Company;
(x) except as may be required by Law or GAAP, make any material change in the financial or Tax accounting methods, principles or practices of the Company (or change an annual accounting period);
(xi) unless required by applicable Law, (i) modify, extend, or enter into any collective bargaining agreement, works council agreement or any other Contract with any labor union, works council, or other labor organization, or (ii) recognize or certify any labor union, labor organization, works council, or other labor organization, or group of employees, as the bargaining representative for any employees of the Company;
(xii) implement or announce any employee layoffs, plant closings, furloughs, salary or wage reductions, work schedule changes or other actions that could require notice under the federal Worker Adjustment and Retraining Notification Act of 1988 or any similar Law (collectively, the “WARN Act”);
(xiii) grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Properties;
(xiv) declare, set aside for payment or pay any dividend, dividend or make any other actualdistribution other than the payment of cash dividends or cash distributions from excess cash balances not needed for the operation of the business in the Ordinary Course;
(xv) make any material change to any of the cash management practices of the Company, constructive including materially deviating from or deemed distribution materially altering any of its practices, policies or procedures in respect paying accounts payable or collecting accounts receivable;
(xvi) make any material change to any of the marketing practices of the Company;
(xvii) waive, release, assign, settle or compromise any Shares material rights, claims, suits, actions, audits, reviews, hearings. proceedings, investigations or litigation (whether civil, criminal, administrative or investigative) against the Company other than waivers, releases, assignments, settlements or compromises that do not exceed $150,000 individually or $300,000 in the aggregate;
(xviii) make or incur any capital expenditures, except for capital expenditures (A) in the Ordinary Course or (B) other than capital expenditures in an amount not to exceed $150,000 individually or $300,000 in the aggregate;
(xix) buy, purchase or otherwise make acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any payments to stockholders in their capacity as suchassets, securities, properties, interests or businesses, other than dividends by a direct (A) inventory and supplies in the Ordinary Course, or indirect wholly owned Subsidiary of (B) other assets in an amount not to exceed $250,000 individually or $1,000,000 in the Company,aggregate;
(ivxx) enter into any new line of business;
(xxi) adopt or effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion Merger and the corporate structure or ownership of any direct or indirect Subsidiary of the Companytransactions contemplated hereunder;
(vixxii) make any acquisition, by means of merger, consolidation fail to use commercially reasonable efforts to maintain existing insurance policies or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business comparable replacement policies consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in levels maintained by the ordinary course of business consistent with past practice and Liens existing as of Company on the date of this Agreement;
(viiixxiii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action (other than actions explicitly permitted by this Agreement) that is reasonably likely to fund prevent, delay or in any impede the consummation of the Merger or the other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plantransactions contemplated by this Agreement; or
(xivxxiv) (A) takeauthorize any of, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate of, the foregoing actions in any material respect at the Effective Time (except for representations and warranties of which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with restricted by the fiduciary duties provisions of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingthis Section 6.1.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from (a) From the date of this Agreement hereof to the Effective Time (unless Parent Closing, Shareholders shall otherwise agree in writing and except as otherwise contemplated by this Agreement), cause the Company will to conduct its operations according to its businesses only in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoingpractices, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will shall not, and will not permit any of unless Parent gives its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
approval, (i) except for the issuance amend or otherwise change its certificate or articles of Shares upon the exercise of Options outstanding incorporation or by-laws, as each such document is in effect on the date of this Agreement and in accordance with their present termshereof, issue, (ii) issue or sell, grant, dispose of, pledge or otherwise encumber, or authorize for issuance or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or issue, grant or enter into any securities subscription, option, warrant, right, convertible security or rights convertible intoother agreement or commitment of any character obligating the Company to issue securities, exchangeable for(iii) in the case of the Company, declare, set aside, make or evidencing the right pay any dividend or other distribution with respect to subscribe forits capital stock, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide or reclassify authorize any Shares or declare, set aside for payment or pay any dividendcapital expenditures, or make sell, pledge, dispose of or encumber, or agree to sell, pledge, dispose of or encumber, any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary assets of the Company,
, except for sales of assets in the ordinary course of business, (ivvi) adopt a plan of complete or partial liquidationacquire (by merger, dissolution, mergershare exchange, consolidation, restructuringcombination or acquisition of stock or assets) any corporation, recapitalization partnership or other reorganization business organization or division thereof or enter into any contract, agreement, commitment or arrangement with respect to any of the Company or foregoing, (vii) incur any of its direct or indirect Subsidiaries indebtedness for borrowed money (other than pursuant to credit, loan or other financing agreements, facilities or arrangements in effect on the Mergerdate hereof),
, issue any debt securities or enter into or modify any contract, agreement, lease, commitment or arrangement with respect thereto, (vviii) adopt enter into any amendments to its Certificate of Incorporation new contract, agreement, lease or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwisecommitment, or dispositionamend or terminate any existing contract, of assets agreement, lease or securities (other than the Merger)commitment, in each case other than in the ordinary course of business consistent business, (ix) enter into, amend or terminate any employment or consulting agreement with past practice;
(vii) sellany director, leaseofficer, licenseconsultant or key employee of the Company, mortgage enter into, amend or terminate any employment agreement with any other person otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales than in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personbusiness, or issue take any action with respect to the grant or sell payment of any debt securities severance or warrants termination pay other than pursuant to policies or other rights to acquire any debt securities agreements of the Company in effect on the date hereof, (x) enter into, extend or renew any lease for office or other space otherwise than in the ordinary course of its Subsidiariesbusiness, (xi) except as required by law, adopt, amend or terminate any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any officer or employee of the Company, or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity, (Bxii) grant any increase in compensation, or grant or make any loans bonus or advancesother compensatory payments, to any director, officer or consultant of the Company, (xiii) grant any increase in compensation to any other than employee of the Company, except in the ordinary course of business consistent with past practice, or any capital contributions to(xiv) change its accounting practices or principles.
(b) From the date hereof to the Closing, or investments in, any other person, other than Shareholders shall cause the Company or any direct or indirect wholly owned Subsidiary to use its best efforts to preserve intact the business organization of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate keep available in any all material respect at respects the Effective Time (except for representations services of their present officers and warranties which speak as of a particular datekey employees, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.to
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoingSection 7.1, and except as otherwise expressly contemplated by this Agreement or as set forth on Schedule 5.1agreed to in writing by Purchaser, the Company will shall not, and will the Seller Parties shall cause the Company not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(ia) except for the issuance amend its certificate of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, incorporation or bylaws (or similar organization documents),
(b) issue, sell, grant, dispose of, pledge sell or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) grant any additional shares of capital stock of any class (including the Shares)class, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of their capital stockstock or equity securities, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock stock, equity securities or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares shares or equity securities outstanding on the date hereof;
(iic) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iiii) split, combine, subdivide or reclassify any Shares shares of its capital stock or equity securities or (ii) declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as suchof, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct capital stock or indirect Subsidiaries (other than the Merger),
(v) adopt equity securities, or redeem or repurchase any amendments to of its Certificate of Incorporation capital stock, equity securities or By-laws any outstanding options, warrants or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership rights of any direct kind to acquire any shares of, or indirect Subsidiary any outstanding securities that are convertible into or exchangeable for any shares of the Companytheir capital stock or equity securities;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiid) (Ai) incur or assume any indebtedness for borrowed money or guarantee any such indebtedness of another person, Debt or issue or sell any debt Debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than except for borrowings in the ordinary course of business consistent with past practice, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person, or (iii) make any material loans, advances or capital contributions to, or investments in, any other person;
(e) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other than manner, (i) any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof or (ii) any assets that, individually or in the aggregate, are material to the Company;
(f) except in the ordinary course of business, sell, lease, license or otherwise encumber or otherwise dispose of, including by merger or liquidation, any of its properties or assets;
(g) make any settlement of or compromise any Tax liability, change in any material respect any Tax election or Tax method of accounting, make any new Tax election or adopt any new Tax method of accounting or file any claim for refund of Taxes or file an amended Tax Return;
(h) except for purchase orders entered into in the ordinary course of business, (i) enter into any contract or agreement, written or oral, relating to the purchase or the sale of, goods, equipment or services of amounts in excess of $10,000 per year or having a duration in excess of one year, (ii) modify, amend or transfer in any respect or terminate any Material Contract or waive, release or assign any rights or claims thereunder or (iii) fail to renew any Material Contract in accordance with its terms;
(i) enter into or amend any agreement or contract with any officer, director, employee, consultant or stockholder of the Company or with any direct or indirect wholly owned Subsidiary Affiliate of the Company;
(ixj) make or agree to make create any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in Encumbrance on the aggregate, are in excess of $600,000Shares;
(xk) make (i) except as may be required by Law, adopt or amend any material tax election bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or settle other employee benefit plan, agreement, trust, fund or compromise other arrangement (including any material income tax liabilityPlan) for the benefit or welfare of any employee, officer, director or service provider or former director, employee, officer or service provider, or (ii) increase the compensation or fringe benefits of any such individuals or pay any benefit not required by any existing plan, arrangement or agreement;
(xil) change its accounting policies, practices or methods except as required by GAAP or by the rules and regulations of the United States Securities and Exchange Commission;
(m) (i) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)in excess of $50,000 in the aggregate, other than the payment, dischargedischarge or satisfaction in the ordinary course of business, settlement (ii) waive, release, grant or satisfaction, transfer any right other than in the ordinary course of business consistent with past practice or (iii) commence any legal proceedings;
(n) fail to use commercially reasonable efforts to maintain the material tangible assets of the Company in accordance with their termscurrent physical condition, of liabilities reflected except for ordinary wear and tear;
(o) transfer or reserved against ingrant any right or licenses under, or contemplated byenter into any settlement regarding the breach or infringement of, the most recent consolidated financial statements (any United States or the notes thereto) included in the Company SEC Reports foreign license of any Intellectual Property, or incurred modify any existing rights with respect thereto or enter into any licensing or similar agreements or arrangements, except in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or ;
(p) change any of its Subsidiaries is a party;
(xii) except in practices, policies, procedures or timing of the ordinary course collection of businessaccounts receivable, modify, amend or terminate any contract or agreement to which the Company or any billing of its Subsidiaries is a partycustomers, pricing and payment terms, cash collections, cash payments, or waive, release or assign any rights or claims;
(xiii) except as required to comply terms with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planvendors; or
(xivq) (A) takeauthorize any of, or agree or commit to takecommit, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, resolve or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at of, the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingforegoing actions.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Sellers shall cause the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Sellers shall not permit the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchaser: (i) except amend or otherwise change its Articles of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options outstanding on warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make create, incur, assume, maintain or permit to exist any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than indebtedness except as otherwise incurred in the ordinary course of business business, consistent with past practice;
, or except for the Company Closing Obligations, (vii) sellpay, leasedischarge or satisfy claims or liabilities (absolute, licenseaccrued, mortgage contingent or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiiotherwise) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or except for the Company Closing Obligations, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments inin financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other personPerson, other than (xi) alter in any material way the manner of keeping the books, accounts or records of the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), accounting practices therein reflected other than the paymentalterations or changes required by GAAP or applicable law, discharge(xii) enter into any indemnification, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill contribution or similar agreements contract pursuant to which the CompanyCompany may be required to indemnify any other Person or make contributions to any other Person, or any of its Subsidiaries is a party;
(xiixiii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase existing contracts in any manner that would result in any material liability to the compensation Company for or fringe benefits ofon account of such amendment or termination, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) takeor change any existing or adopt any new tax accounting principle, method of accounting or agree tax election except as provided herein or commit agreed to take, any action that would make any representation or warranty of in writing by the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingPurchaser.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on in the Section 5.1 of the Company Disclosure Schedule 5.1or as otherwise expressly contemplated or permitted hereby, during unless otherwise approved in writing by the period Parent, which approval shall not be unreasonably withheld or delayed, from the date of this Agreement to hereof until the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement)Time, the Company will shall, and shall cause each of the Company Subsidiaries to, conduct its operations according to its business in the ordinary and usual course of business consistent with past practice and seek shall use commercially reasonable efforts to (i) preserve intact its current present business organizationorganization and (ii) maintain in effect all material foreign, keep available Federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for the services of Company or any Company Subsidiary to carry on its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timebusiness. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, in the Company will notDisclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, and will not permit any of its Subsidiaries to, prior to from the date hereof until the Effective Time, without the prior written consent of the Parent, which shall not be unreasonably withheld or delayed, the Company shall not, nor shall it permit any Company Subsidiary to:
(ia) except for the issuance amend its certificate of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsincorporation or by-laws;
(b) split, issue, sell, grant, dispose of, pledge combine or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) reclassify any additional shares of capital stock of any class (including the Shares), Company or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares less-than-wholly-owned Company Subsidiary or declare, set aside for payment or pay any dividend, dividend or make any other actual, constructive or deemed distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Shares or any other Company capital stock, or redeem, repurchase or otherwise make acquire or offer to redeem, repurchase or otherwise acquire any payments Company equity or equity related securities or any equity or equity related securities of any Company Subsidiary;
(c) issue, deliver or sell or authorize the issuance, delivery or sale of, any shares of the Company's capital stock of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to stockholders in their capacity as suchacquire, any such capital stock or any such convertible or exchangeable securities, other than dividends by a direct or indirect wholly owned Subsidiary in connection with the issuance of Company Common Shares upon the Company,
(iv) adopt a plan exercise of complete or partial liquidationCompany Options, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization the granting of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments Options to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales acquire Company Common Shares in the ordinary course of business consistent with past practice (including under the Employee Option Plan, as proposed to be amended at the Company's 2002 annual meeting) and Liens existing as the issuance of Company Common Shares in accordance with the terms of the date of this AgreementDirector Stock Grant Plan;
(viiid) (A) incur amend any indebtedness for borrowed money or guarantee term of any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities outstanding security of the Company or any of Company Subsidiary; provided that the Company may amend the Employee Option Plan at its 2002 annual meeting as disclosed in the Company's definitive proxy statement filed with the SEC on April 12, 2002;
(e) incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, which budget is included in or attached to the Company Disclosure Schedule or (Bii) make not otherwise described in clause (i) which, in the aggregate, do not exceed $5.0 million;
(f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) or propose to acquire in one transaction or a series of related transactions (i) any loans assets (including any equity interests) outside of the ordinary course of business or advances(ii) all or substantially all of the equity interests of any person or any business or division of any person;
(g) sell, lease, encumber or otherwise dispose of any material assets, other than (i) sales in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than (ii) equipment and property no longer used in the operation of the business of the Company and the Company Subsidiaries and (iii) assets related to discontinued operations of the Company or any direct or indirect wholly owned Subsidiary of the CompanyCompany Subsidiary;
(ixh) make or agree other than with respect to make contracts terminable upon no more than 90 days' notice without penalty, enter into any new capital expenditure contract or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against inagreement, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend amend, terminate or terminate renew any existing contract or agreement to which the Company or any of its Subsidiaries is a party, other than (i) in the ordinary course of business or (ii) if the dollar value of such new contract or agreement, or existing contract or agreement as so amended, modified, terminated or renewed, is or would be less than $250,000 (or $2 million in the aggregate);
(i) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings made in the ordinary course of business under existing credit facilities of the Company within the borrowing capacity thereunder as of the date hereof);
(j) except in the ordinary course of business, amend, modify or terminate any material contract, agreement or arrangement of the Company or any Company Subsidiary, or otherwise waive, release or assign any rights material rights, claims or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any Company Subsidiary thereunder; provided that the Company may amend its Employee Option Plan at its 2002 annual meeting as disclosed in the Company's definitive proxy statement filed with the SEC on April 12, 2002;
(i) except as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director or executive officer or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (ii) except as required by law or a written agreement, policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan or, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) except as may be required by law, amend in any material respect any Company Employee Plan; provided however that the Company may adopt a change in control policy or enter into agreements providing for payments to be made by the Company in connection with, among other things, a change in control of the Company, in each case, with such employees and substantially on the terms disclosed in Section 3.15 of the Company Disclosure Schedule; provided further that the Company may amend its Subsidiaries Employee Option Plan at its 2002 annual meeting as disclosed in the Company's definitive proxy statement filed with the SEC on April 12, 2002;
(collectivelyl) change the Company's (x) methods of accounting in effect at February 1, "Benefit Plans")2002, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year;
(m) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise) other than:
(i) the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Balance Sheet, (ii) those incurred in the ordinary course of business or (iii) those incurred as otherwise permitted by this Section 5.1;
(n) except as described in Section 3.15 of the Company Disclosure Schedule, make payments or distributions (other than arrangements or understandings adopted, entered into, terminated or amended normal salaries and other compensation in the ordinary course of business consistent with past practice, ) to any affiliate of the Company;
(B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (Do) except as permitted disclosed in clause Section 3.4 of the Company Disclosure Schedule, permit any insurance policy naming the Company or any of its Subsidiaries as a beneficiary or loss payable payee to be cancelled or terminated with notice to the Parent;
(Bp) aboveknowingly do any act or omit to do any act that would result in a breach of any representation, warranty or for options included in covenant by the representation Company set forth in this Agreement or, except as permitted by Section 3.25.3, grant any awards under any bonus, incentive, performance otherwise materially impair or other compensation plan or arrangement or Benefit Plan (including delay the grant ability of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, the Company to consummate the Offer or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanMerger; or
(xivq) (A) takeagree, resolve, commit or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or publicly announce an intention to do any of the foregoing;
(a) through 5.1(q) shall not apply to any action, transaction or enter into event occurring exclusively between the Company and any contract, agreement, commitment wholly-owned Company Subsidiary or arrangement to do between any of the foregoingwholly-owned Company Subsidiaries.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement, as set forth in Section 5.1(a) of the Seller Disclosure Schedule, as required by applicable Law and as may be consented to in writing by Purchaser (such consent not to be unreasonably withheld or delayed), from the date hereof to the Closing:
(i) Seller shall cause the business of the Company will conduct its operations according and the Company Subsidiaries to its be conducted in the ordinary and usual course of business consistent including, without limitation, with past practice regard to the payment of payables, the billing and seek collection of receivables and not making changes in the terms of creditor or debtor payments;
(ii) Seller shall cause each of the Company and the Company Subsidiaries to use commercially reasonable efforts: (A) to preserve intact its their respective current business organization, organizations; (B) to keep available the services of its their current officers and employees (to the extent not inconsistent with Section 5.1(a)(iv)); and (C) to preserve its relationships with customersthe goodwill of suppliers, suppliers customers and others having with whom material business dealings with it relationships exist to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality as of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, Closing Date;
(iii) Seller shall cause each of the Company will notand the Company Subsidiaries not to: (A) amend its certificate of incorporation or by-laws (or similar organizational documents), and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(iB) except authorize for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsissuance, issue, sell, granttransfer, pledge, dispose of, pledge of or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) encumber any additional shares of capital stock of any class (including the Shares)or series of its capital stock, or any securities convertible into or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stockoptions, or any rightsputs, warrants, options, calls, commitments or any other agreements rights of any character kind to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe foracquire, any shares of any class or series of its capital stock (unless such action with respect to a Subsidiary does not and would not reduce the Company's aggregate direct or indirect beneficial ownership of such Subsidiary), (C) except if by a wholly owned Company Subsidiary, declare, set aside or pay any non-cash dividend or any other distribution payable in stock or property (other than cash and cash equivalents) with respect to any shares of any class or series of its capital stock; or (D) except with respect to securities of wholly owned Company Subsidiaries, split, combine or reclassify any shares of any class or series of its capital stock;
(iv) Seller shall cause the Company and each Company Subsidiary not to (A) make any change in the compensation payable or to become payable to any of its employees or to any Plan (in each case other than normal recurring increases in the ordinary course of business consistent with past practices or pursuant to plans, programs or agreements existing on the date hereof) or (B) to introduce any other securities new Plans in respect of, an amount exceeding $25,000 for any individual or $250,000 in lieu of, or in substitution for, Shares outstanding on the date hereofaggregate;
(iiv) redeem, purchase or otherwise acquire, or propose Seller shall cause the Company and each Company Subsidiary not to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, corporate or other similar restructuring, recapitalization or other corporate or similar reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the CompanyCompany Subsidiary;
(vi) make Seller shall cause the Company and each Company Subsidiary not to change in any acquisitionmaterial respect any of the accounting methods used by it unless required by applicable GAAP;
(vii) Seller shall cause the Company and each Company Subsidiary not to become legally committed to any new capital expenditure requiring expenditures after the Closing, by means except for expenditures pursuant to projects for which work has already been commenced or committed prior to the date hereof and except as consistent with the consolidated capital expenditure budget of mergerthe Company and its consolidated Subsidiaries set forth in Section 5.1 of the Seller Disclosure Schedule;
(viii) except in the ordinary course of business and in arms-length transactions, consolidation Seller shall cause the Company and each Company Subsidiary not to transfer, sell, lease, license, mortgage or otherwise, or disposition, of assets or securities create an Encumbrance upon (other than Permitted Encumbrances) any of their respective assets or properties;
(ix) the MergerCompany and the Company Subsidiaries shall not make any loans or advances to any Person such that the amount of principal owed by such Person to the Company and the Company Subsidiaries shall be in excess of $100,000 and shall not make any loan or advance if, after giving effect to such loan or advance the total principal amount of all loans and advances made after the date hereof shall be in excess of $500,000; and
(x) Seller shall cause the Company and each Company Subsidiary not to enter into any agreement, contract, commitment or arrangement to do any of the foregoing in clauses (i) through (ix). Seller shall not take any affirmative action with respect to any Minority Subsidiary to permit or cause such Minority Subsidiary to take any action that would violate the provisions of this Section 5.1(a) if such action were taken by the Company. Notwithstanding anything to the contrary contained in this Agreement (but only to the extent not prohibited by applicable Law and subject to Section 5.6(k)), nothing shall prohibit Seller from sweeping cash from the accounts of the Company and the Company Subsidiaries which would be considered "cash or cash equivalents" (determined on the same basis as such line item was determined in each case other than the Company Financial Statements) up until the opening of business on the Closing Date or from reducing Indebtedness up until the completion of the Closing, it being understood that the sweeping of such cash or the reduction of Indebtedness shall be taken into account when calculating the Closing Net Indebtedness; provided, however, that Seller shall not be permitted to sweep cash (as provided above) if it would result in the inability of the Company or any Company Subsidiary to meet its operating obligations required to be paid before the Closing Date in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Interpublic Group of Companies Inc)
Interim Operations of the Company. Except The Company covenants and agrees that during the period from the date of this Agreement to the Effective Time, except (i) as expressly contemplated by this Agreement, (ii) as set forth on Schedule 5.1in the Disclosure Schedule, or (iii) as consented to in writing by the Purchaser after the date hereof (which consent shall not be unreasonably withheld or delayed), the Company shall, and shall cause each Subsidiary to, conduct its businesses only in the usual, regular and ordinary course and substantially in the same manner as heretofore conducted, use its commercially reasonable efforts to (A) preserve its business organization intact, (B) keep available the services of its current officers and employees, and (C) maintain its existing relations with material customers, suppliers, creditors, business partners and others having material business dealings with it. Without limiting the generality of the foregoing, and subject to exceptions set forth in clauses (i) through (iii) above, during the period from the date of this Agreement to the Effective Time the Company shall not and shall not permit any Subsidiary to:
(unless Parent shall otherwise agree a) (i) amend or propose to amend its Certificate of Incorporation or By-Laws or similar organizational documents (other than in writing and the case of any Wholly-Owned Company Subsidiary), (ii) except as otherwise contemplated required for issuances of any class or series of its capital stock by this Agreement), the any directly or indirectly Wholly-Owned Company will conduct its operations according Subsidiary to its parent in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termspractice, issue, sell, grant, dispose of, pledge or otherwise encumbertransfer, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) subject to any additional Lien any shares of capital stock of any class (including the Shares)or series of its capital stock or Voting Debt, or any securities convertible into or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rightsoptions, warrants, options, calls, commitments or any other agreements rights of any character kind to purchase or acquire acquire, any shares of any class or series of its capital stock or any securities or rights convertible into, exchangeable forVoting Debt, or evidencing any stock or phantom appreciation rights or performance share awards or other rights to receive Shares other than (x) the right to subscribe for, any issuance of shares of capital stock or Company Common Stock reserved for issuance on the date hereof pursuant to the exercise in accordance with their present terms of (A) Options and (B) any other securities in respect ofWarrants, in lieu of, or in substitution for, Shares each case to the extent outstanding on the date hereof;
, and (iiy) redeemthe issuance of shares of Company Common Stock in accordance with past practice pursuant to the terms of the Company Stock Option Plan as in effect on the date of this Agreement, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, dividend or make any other actual, constructive or deemed distribution payable in cash, stock or property with respect to any shares of any Shares class or otherwise make any payments to stockholders in their capacity as suchseries of its capital stock, other than the declaration, setting aside or payment of cash dividends by a direct or indirect wholly owned from any Wholly-Owned Company Subsidiary of the Company,
to its parent consistent with past practice, (iv) split, combine or reclassify any shares of any class or series of its stock or (v) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares;
(b) except as permitted by Section 5.2 hereof, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other Subsidiary(other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vic) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than as contemplated by this agreement or in connection with inter-company indebtedness between the Merger), in each case other than in Company and any of its Wholly-Owned Company Subsidiaries or between any Subsidiary or except if the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose amount of any of its properties or assets, except sales the following items does not exceed $75,000.00 in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
aggregate: (viii) (Ai) incur or assume any long-term debt or incur or assume any short-term indebtedness, (ii) modify the terms of any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advancesliability, other than in the ordinary course under its existing line of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary credit and modifications of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended short term debt in the ordinary course of business consistent with past practice, (Biii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, or (iv) make any loans, advances or capital contributions to, or investments in, any other Person;
(d) (i) make or agree to make any capital expenditures in excess of $75,000.00 in the aggregate (not including new store openings), (ii) enter into any agreement that would be a Material Agreement had such agreement been entered into prior to the date hereof, (iii) modify, amend or terminate any of its Material Agreements or waive, release or assign any material rights or claims thereunder, or (iv) enter into any agreement, understanding or commitment that restrains, limits or impedes the Company's or any Subsidiary's ability to compete with or conduct any business or line of business, including, but not limited to, geographic limitations on the Company's or any Subsidiary's activities;
(i) enter into any collective bargaining agreement, (ii) increase by greater than five (5%) over the prior fiscal year the compensation, including bonuses, payable or to become payable to any of its officers (i.e. vice presidents and above) or directors, (iii) enter into or amend any employment, severance, retention, consulting, termination or other agreement with, or grant any additional retention, severance or termination pay to, any of its officers, directors or employees, (iv) adopt any employee benefit plan if such adoption would create or increase any liability or obligation on the part of the Company or any Subsidiary or, except as required by law, amend any Plan, (v) except as contemplated by this Agreement, amend the terms of any Option, (vi) change the manner in which contributions to any manner pension or retirement plan are made or the compensation basis on which such contributions are determined (including actuarial assumptions used to calculate funding obligations) or fringe benefits (vii) make any loans to any of its officers, directors, employees, Affiliates, agents or consultants;
(f) acquire or enter into any agreement or transaction relating to the acquisition, by merger, consolidation with or the purchase of a substantial portion of the assets of, or pay by any bonus toother manner, any directorbusiness or any corporation, officer limited liability company, partnership, joint venture, association or employee other business organization or division thereof;
(g) transfer, lease (as lessor), license (as licensor), sell, dispose of or subject to any Lien (including securitization) any assets, except for normal increases or bonuses in the ordinary course of business consistent with past practicebusiness; or
(h) except as contemplated by this Agreement or except in an amount not to exceed $50,000.00 in the aggregate, pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, contingent or otherwise), (C) pay any benefit not provided for under any Benefit Plan, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, of claims, liabilities or obligations reflected or disclosed in the Balance Sheet (Dor the notes thereto) or incurred since the Balance Sheet Date;
(i) permit any insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated without notice to the Purchaser;
(A) change any of the accounting methods used by it unless required by GAAP or (B) make any material tax election or change any material tax election already made, adopt any material tax accounting method, change any material tax method unless required by GAAP or any Governmental Entity, law or regulation, enter into any closing agreement or settle or compromise any material Tax claim or assessment or waive the statute of limitations in respect of any such material Tax claim or assessment;
(k) except as permitted in clause (B) aboveby Section 5.2 hereof, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or to commit to take, any action that which it believes when taken would make cause any representation or warranty of the Company hereunder contained herein that is qualified as to materiality from being untrue or inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, in any respect or agree or commit to omit, to take any action necessary to prevent any such representation or warranty that is not so qualified from being untrue or inaccurate in any material respect at or that would materially impair the Effective Time (except for representations and warranties which speak as ability of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, consummate any of the conditions Transactions in accordance with the terms of this Agreement or materially delay such consummation; and
(l) enter into an agreement, contract, commitment or arrangement to do any of the Merger set forth in Article VI not being satisfied except thatforegoing, with respect or to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (U S Vision Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement (a) Prior to the Effective Time Closing (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), i) the Company will shall conduct its business and operations according to its (A) in the ordinary course and usual course of business consistent in accordance with past practice practices and seek (B) in compliance with all applicable legal requirements and the requirements of all Material Contracts, and (ii) the Company shall use its reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and other employees and preserve maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with customersit or its subsidiaries, suppliers and others having business dealings with it as the case may be.
(b) Prior to the end that their goodwill and ongoing businesses Closing, except to the extent Parent shall otherwise consent in writing (which consent shall not be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoingunreasonably withheld, and except as otherwise contemplated by this Agreement conditioned or as set forth on Schedule 5.1delayed), the Company will shall not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) amend its articles of incorporation or bylaws (except as specifically contemplated in this Agreement) or other charter or organizational documents, or effect a stock split, division, or subdivision of shares, reverse stock split, consolidation of shares or similar transaction;
(ii) effect or become a party to any merger, consolidation, amalgamation, share exchange or other business combination;
(iii) except for any distribution of the issuance Company’s Net Cash to the Company Shareholders immediately prior to the Closing pursuant to Section 2.12, declare, set aside or pay any dividend (whether payable in cash, stock or property) or make any other distribution in respect of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock;
(iv) form any subsidiary or acquire any equity interest in any other Person;
(v) issue, sell, grant or authorize the issuance or grant of any capital stock or other security, or any rightsinstrument convertible into or exchangeable for, or options, warrants, options, calls, commitments or any other agreements rights of any character kind to purchase or acquire acquire, any shares of capital stock or other securities; provided; however, that the foregoing shall not be deemed to prohibit the exercise or conversion of any stock options, warrants or other derivative securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares outstanding as of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iivi) redeemexcept as contemplated by this Agreement, purchase amend or otherwise acquire, or propose to redeem, purchase or otherwise acquire, waive any of its rights under, or alter the acceleration of the vesting under, any provision of any stock option plan, any provision of any agreement evidencing any outstanding Sharesstock option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding option, warrant or other security or any related Contract;
(iiivii) splittransfer, combine, subdivide lease or reclassify license to any Shares or declare, set aside for payment or pay any dividendthird party, or make encumber, any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of material assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreementbusiness;
(viii) repurchase, redeem or otherwise acquire any shares of the capital stock;
(Aix) lend money to any Person or incur any indebtedness for borrowed money or guarantee any such indebtedness of another personindebtedness, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or except for (BA) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or short-term borrowings incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree and (B) borrowings pursuant to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except Debt Agreements in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiiix) except as required to comply with applicable lawestablish, (A) adopt, enter into, terminate adopt or materially amend any bonus, pension, profit sharing, deferred compensation, incentive compensationseverance, stock ownership, stock purchasetermination, stock option, phantom stock appreciation right, restricted stock, pension, retirement, vacation, severance, disability, death benefit, hospitalization, medical deferred compensation or other plan, arrangement employee benefit plan agreements or understanding (whether or not legally binding) providing benefits to plans for the benefit of any current or former employeedirector, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits ofemployee, or pay any bonus toor increase the wages, salary, considerations, fringe benefits or other compensation or remuneration payable to any director, officer or employee (except for normal amendments to comply with applicable law or increases or bonuses in the ordinary course of business that are consistent with past practicepractices or that, in the aggregate, do not result in a material increase in benefits or compensation expense or as expressly contemplated by this Agreement or any of the Transaction Documents), ;
(Cxi) pay enter into or become bound by any benefit not provided for under any Benefit Plan, Material Contract other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) abovebusiness, or for options included in the representation set forth in Section 3.2amend or prematurely terminate any Contract or exercise, grant waive, release or assign any awards material right or claim under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; orMaterial Contract;
(xivxii) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, change any of the conditions its methods of the Merger set forth in Article VI not being satisfied except that, accounting or accounting practices;
(xiii) make or change any election with respect to the condition set forth in Section 6.1(a)Taxes, such action shall be permitted if it is consistent adopt or change any method of accounting with the fiduciary duties of the Company's Board of Directors respect to the Company's stockholders under applicable law; or
(xv) authorizeTaxes, recommendfile any amended Tax Return, propose or announce an intention surrender any right to do any of the foregoinga claim for Taxes, or enter into any contract, closing agreement, commitment settle any Tax claim or arrangement assessment, or consent to do any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(xiv) make any capital expenditure in excess of $25,000;
(xv) hire any employee at the level of Vice President or above;
(xvi) take or permit to exist any action or condition specified in Section 3.6(b), (c), (d), (e) and (g); or
(xvii) enter into an agreement to take any of the foregoingactions described in clauses (i) through (xvi) of this Section 5.1(b).
Appears in 1 contract
Samples: Merger Agreement (Captaris Inc)
Interim Operations of the Company. Except The Company covenants and agrees that, except (i) as expressly contemplated by this Agreement, (ii) as set forth on Section 5.1 of the Company Disclosure Schedule 5.1or (iii) with the consent of Parent, during the period from which consent will not be unreasonably withheld, after the date of this Agreement hereof, and prior to the Effective Time (unless Parent time the directors designated by the Purchaser have been elected to, and shall otherwise agree in writing and except as otherwise contemplated by this Agreement)constitute a majority of, the Board pursuant to Section 1.3 (the "Appointment Date"):
(a) the business of the Company will conduct and its operations according to its Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, each of business consistent the Company and its Subsidiaries shall use its commercially reasonable best efforts and shall cooperate with past practice and seek Parent to preserve its business organization intact and maintain its current business organization, keep available the services of its current officers and employees and preserve its relationships existing relations with customers, suppliers suppliers, employees, creditors and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, partners;
(b) the Company will not, and will not permit any of its Subsidiaries todirectly or indirectly, prior to the Effective Time, without the prior written consent of Parent:
(i) except for (x) upon exercise or payment of stock options or other awards outstanding under the issuance Company Stock Plans or (y) pursuant to outstanding obligations to the former stockholders of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsAlarm Suppliers, issueInc., sell, grantpledge, dispose of or encumber any shares of, pledge or otherwise encumbersecurities convertible into or exchangeable for, or authorize options, warrants, calls, commitment or propose the issuancerights of any kind to acquire, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(vSubsidiaries,(ii) adopt any amendments to amend its Certificate of Incorporation or By-laws or alter through mergersimilar organizational documents; or (iii) split, liquidation, reorganization, restructuring combine or in reclassify the outstanding Shares or any other fashion the corporate structure or ownership outstanding capital stock of any direct or indirect Subsidiary of the Subsidiaries of the Company;
(vic) make neither the Company nor any acquisitionof its Subsidiaries shall: (i) declare, by means of mergerset aside or pay any dividend or other distribution payable in cash, consolidation stock or otherwise, or disposition, of assets or securities (property with respect to its capital stock other than dividends paid by Subsidiaries of the Merger), in each case other than Company in the ordinary course of business consistent with past practice;
(vii; provided, that the Company may declare and pay the regular quarterly cash dividends in amounts not to exceed $.0217 per share of Common Stock and $.03 per share of Class A Stock to holders of shares of Common Stock and Class A Stock;(ii) selltransfer, lease, license, mortgage sell, mortgage, pledge, dispose of, or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales assets other than in the ordinary and usual course of business and consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) practice, or incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advancesliability, other than in the ordinary and usual course of business and consistent with past practice; or (iii) redeem, purchase or otherwise acquire directly or indirectly any of its capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Companystock;
(ixd) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in neither the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or nor any of its Subsidiaries is a party;
(xii) shall, except as required by any collective bargaining agreement, grant any increase in the ordinary course of business, modify, amend compensation payable or terminate any contract or agreement to which become payable by the Company or any of its Subsidiaries is to any of its officers or employees except that the Company and its Subsidiaries may grant base salary increases consistent with past practice for employees normally occurring at or after the 1999 year end for year 2000; provided, that such increases in base salaries may not exceed five percent (5%) in the aggre gate for all such employees (except for salaries paid to managers of businesses acquired by the Company after October 1, 1998, in which case such salaries shall be determined in a partymanner consistent with the Company's past practice with respect to salaries paid to managers of acquired companies); provided, or waivefurther, release or assign that any rights or claimsincreases in the base salaries payable to the Company's top ten most highly compensated executives must be consistent with past practice for such executives (unless agreed to, on a case by case basis, by Parent) and, in any event, such increases may not exceed ten percent (10%) of base salary (x) for each such executive and (y) in the aggregate for all such executives;
(xiiie) except as required to comply with applicable law, neither the Company nor any of its Subsidiaries shall (A) adoptadopt any new, enter intoor (B) amend or otherwise increase, terminate or amend accelerate the payment or vesting of the amounts payable or to become payable under, any existing, bonus, pensionincentive compensation, deferred compensation, severance, profit sharing, deferred compensation, incentive compensation, stock ownershipoption, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.41
Appears in 1 contract
Samples: Agreement and Plan of Merger (Honeywell International Inc)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during During the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Time, except as otherwise contemplated required by this Agreement)Law, the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated specifically permitted by this Agreement or as set forth on Schedule 5.16.01, or as otherwise consented to in writing by Parent, the Company will not, and will not permit any of its Subsidiaries cause each Company Subsidiary to, prior to the Effective Time, without the prior written consent of Parent:
(a) use commercially reasonable efforts (consistent with operating in the ordinary course of business and past practices) to (i) except for preserve intact its present business organization, (ii) keep available the issuance services of Shares upon its present officers and employees, (iii) preserve its relationships with clients, suppliers, customers, distributors and others having significant business dealings with it, including renewing existing leases and licenses in the exercise ordinary course of Options outstanding on business, (iv) maintain all assets in good repair and condition other than those disposed of in the date ordinary course of this Agreement business, (v) maintain all insurance, (vi) maintain its books of account and records in accordance with their present termsthe usual, issue, sell, grant, dispose of, pledge or regular and ordinary manner and (vii) otherwise encumber, or authorize or propose operate in the issuance, sale, disposition or pledge or other encumbrance ordinary course of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofbusiness;
(iib) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to not amend its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the CompanyLaws;
(vic) make any acquisition, not acquire by means of merger, consolidation merging or otherwiseconsolidating with, or dispositionpurchasing all or substantially all of the assets of, or otherwise acquiring, any business of assets any Person or securities (other than the Merger)business organization or division thereof, in each case other than for consideration having a value in the ordinary course excess of business consistent with past practice$5,000,000 or an aggregate value in excess of $10,000,000;
(viid) not split, combine or reclassify its outstanding capital stock or declare, set aside, make or pay any dividend or other distribution in respect of its capital stock other than (i) cash dividends or distributions made prior to the Effective Time; or (ii) dividends paid by the Company’s wholly-owned Subsidiaries to the Company or its wholly-owned Subsidiaries;
(e) not issue or sell (or agree to issue or sell) any shares of its capital stock of any class or series, leaseor any options, licensewarrants, mortgage conversion or otherwise encumber other rights to purchase any such shares or subject any securities convertible into or exchangeable for such shares (other than upon the exercise or conversion of options, warrants or convertible securities outstanding on the date hereof), or grant, or agree to grant, any Lien such options or otherwise dispose modify or alter the terms of any of its properties or assetsthe above, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreementcontemplated under Section 2.06;
(viiif) not (Ai) incur any indebtedness for borrowed money other than pursuant to the terms of the Company’s existing credit facilities in effect on the date hereof or guarantee vary the material terms of any such indebtedness of another personexisting debt securities, or (ii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable lawsecurities, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (Eiii) other than in the ordinary course of business consistent with past practiceor pursuant to the Company’s 2006 capital expenditure plan which has previously been made available to Parent, take acquire or dispose of any action to fund assets (other than acquisitions and dispositions of goods purchased for resale in the ordinary course of business) having a book or market value individually in any other way secure the payment excess of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take$1,000,000, or agree or commit to take(iv) other than in the ordinary course of business, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular dateenter into, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate modify in any material respect at the Effective Time or terminate any Material Contract;
(except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted g) not take any steps to take mortgage or omit pledge to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) takesecure any material obligation, or agree or commit to take, subject to any action that would result in, or is reasonably likely to result inmaterial Lien, any of its material properties other than pursuant to the conditions terms of the Merger set forth Company’s existing credit facilities as in Article VI effect on the date hereof or in the ordinary course of business;
(h) not being satisfied grant to any present or former director or officer, or, except thatin the ordinary course of business, consultant or other employee any increase in compensation or benefits in any form, or any severance or termination pay, or make any loan to or enter into any employment agreement, collective bargaining agreement or arrangement with any such Person, except in each case as may be required by Law or the terms of any existing Employee Plan or arrangement and except for the Additional Transaction Bonuses;
(i) not adopt, enter into, amend in any material respect, announce to participants any intention to adopt or terminate, any Employee Plan or other employee benefit plan, program or arrangement that would be an Employee Plan if it were in effect on the date hereof, except (i) as required by applicable Law, (ii) as disclosed on any disclosure Schedule pursuant to Section 4.15, (iii) as contemplated under Section 2.06, (iv) in connection with the Additional Transaction Bonuses or (v) except, with respect to the condition Company’s health and medical plans, in the ordinary course of business provided such action does not materially increase the benefits payable under such Employee Plans;
(j) not discharge or satisfy any material Lien or pay or satisfy any material obligation or Liability (fixed or contingent) (other than in the ordinary course of business) or commence any voluntary petition, proceeding or action under any bankruptcy, insolvency or other similar Laws;
(k) not make or institute any material change in its accounting procedures or practices unless mandated by GAAP;
(l) not make any material Tax election or settle or compromise any material Tax Liability;
(m) not, other than in the ordinary course of business, enter into, or consent to the entering into of, any agreement with any Governmental Entity relating to the actual or threatened condemnation of any Owned Property or Leased Premises; and
(n) not authorize or agree to take any of the actions set forth in Section 6.1(athe foregoing subparagraphs (a) through (l), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Primary Seller shall cause the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Primary Seller shall not permit the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchasers: (i) except amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options outstanding on warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make create, incur, assume, maintain or permit to exist any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than indebtedness except as otherwise incurred in the ordinary course of business business, consistent with past practice;
, or except for the Company Closing Obligations, (vii) sellpay, leasedischarge or satisfy claims or liabilities (absolute, licenseaccrued, mortgage contingent or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiiotherwise) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or except for the Company Closing Obligations, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments inin financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other personPerson, other than (xi) alter in any material way the manner of keeping the books, accounts or records of the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), accounting practices therein reflected other than the paymentalterations or changes required by GAAP or applicable law, discharge(xii) enter into any indemnification, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill contribution or similar agreements contract pursuant to which the CompanyCompany may be required to indemnify any other Person or make contributions to any other Person, or any of its Subsidiaries is a party;
(xiixiii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase existing contracts in any manner that would result in any material liability to the compensation Company for or fringe benefits ofon account of such amendment or termination, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) takeor change any existing or adopt any new tax accounting principle, method of accounting or agree tax election except as provided herein or commit agreed to take, any action that would make any representation or warranty of in writing by the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingPurchasers.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from From the date of this Agreement to and until the Effective Time or the earlier termination of this Agreement in accordance with its terms, except (unless Parent shall otherwise agree in writing and except a) as otherwise expressly contemplated by this Agreement), (b) as set forth on Section 5.1 of the Company will Disclosure Letter, (c) as required by applicable Law, or (d) as consented to in writing by Kuraray after the date of this Agreement and prior to the Effective Time, which consent shall not be unreasonably withheld, conditioned or delayed, (x) the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its operations according to its business only in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, (y) the Company will shall not, and will shall not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize amend or propose to amend the issuancecertificate of incorporation or bylaws of the Company or amend or propose to amend any of the certificates of incorporation, sale, disposition or pledge bylaws or other encumbrance of (A) any additional shares of capital stock comparable charter or organizational documents of any class (including of the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofCompany’s Subsidiaries;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iiiA) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividenddividend or other distribution, whether payable in cash, stock or make any other actualproperty, constructive or deemed distribution in with respect of any Shares or otherwise make any payments to stockholders in their capacity as suchits capital stock, other than dividends or distributions payable in the ordinary course of business or by a direct or indirect wholly owned Subsidiary of the Company,
, (ivB) adopt a plan issue, deliver, sell, transfer, pledge, dispose of complete or partial liquidationencumber or agree to issue, dissolutiondeliver, mergersell, consolidationtransfer, restructuringpledge, recapitalization dispose of or encumber any additional shares of capital stock or other reorganization Rights of the Company or any of its direct or indirect Subsidiaries (Subsidiaries, other than in respect of the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary shares of the Company’s capital stock reserved for issuance and issued pursuant to the Company Stock Plans that are outstanding as of the date hereof or granted after the date hereof in accordance with this Agreement, in each case, vested or settled in accordance with their terms, (C) adjust, split, combine or reclassify the Shares or any other outstanding capital stock or other equity or voting interests of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor or (D) redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Rights of the Company or any of its Subsidiaries, except, in the case of each of the foregoing clauses (A), (B) and (D), as required by any Company Plan, Company Stock Plan or any Company Stock Awards issued thereunder;
(viiii) make except as required by applicable Law, under the terms of any acquisition, existing Company Plan or as permitted by means of merger, consolidation or otherwiseSection 5.1(a)(ii), or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as (other than with respect to the granting of equity awards, which shall be subject to Section 5.1 of the date Company Disclosure Letter), (A) grant to any director or executive officer any increase in compensation or pay, or award any bonuses or incentive compensation, (B) grant to any current or former director, executive officer or employee any increase in severance, retention, or termination pay, (C) grant or amend any equity awards, (D) enter into any new, or modify any existing, employment or consulting agreement with any current or former director, executive officer or individual consultant, (E) establish, adopt, enter into or amend in any material respect any Collective Bargaining Agreement or Company Plan, (F) take any action to accelerate any rights or benefits under any Company Plan or (G) make any material determination under any Company Plan that is inconsistent with the ordinary course of this Agreementbusiness or past practice;
(viiiiv) assume, guarantee, endorse or otherwise become liable or responsible (Awhether directly, contingently or otherwise) incur for the obligations of any indebtedness for borrowed money or guarantee other Person, including any such indebtedness Indebtedness of another personany other Person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than except in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Companybusiness;
(ixv) make or agree to neither the Company nor any of its Subsidiaries will make any new capital expenditure or expenditures which, individually, is in excess of $100,000 orthat, in the aggregate, are in excess exceed the amount of $600,000capital expenditures contemplated by the Company’s existing capital budget, a copy of which has been furnished to Parent;
(xvi) make any material tax election or settle or compromise any material income tax liability;
(xiA) pay, discharge, waive, settle or satisfy any rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, as may be required by Law, or for amounts, individually or in the aggregate, not to exceed $2,500,000 or (B) waive any material benefits of, or agree to modify in any adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreements Contract to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to by which the Company or any of its Subsidiaries is a party, party or waive, release or assign any rights or claimsbound;
(xiiivii) except as change any of the accounting methods, principles or practices used by it unless required to comply with by a change in GAAP or applicable lawLaw;
(viii) incur, create, redeem, prepay, defease, cancel, or, in any material respect, modify any material Indebtedness, other than (A) adoptborrowings and prepayments under the Company’s and any of its Subsidiaries’ existing credit facilities that are made in the ordinary course of business consistent with past practice and (B) the incurrence, enter intoredemption, terminate prepayment, defeasance, cancellation or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical modification of Indebtedness by the Company or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director a wholly owned Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company;
(ix) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization (other than this Agreement or otherwise in connection with the Transactions), (B) acquire by merging or consolidating with, or by purchasing a substantial equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (C) acquire, transfer, lease or license any assets, other than, in the case of its Subsidiaries this clause (collectively, "Benefit Plans"C), other than arrangements or understandings adoptedacquisitions of raw materials and inventory and sales of inventory, entered intoin each case, terminated or amended in the ordinary course of business consistent with past practice;
(x) sell, (B) increase in license, lease, transfer, assign, divest, cancel, abandon or otherwise encumber or subject to any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee Encumbrance (except for normal increases Permitted Encumbrances) or bonuses otherwise dispose of any of its properties, rights or assets (except as previously disclosed to Kuraray) with a value in excess of $10 million in the aggregate, other than sales, of Inventory or obsolete, non-operating or worthless assets or properties in the ordinary course of business consistent with past practice);
(xi) except as required by Law (A) make, change or rescind any material Tax election, (B) settle or compromise any material Tax liability or consent to any claim or assessment relating to a material amount of Taxes, (C) pay file any benefit not provided for under any Benefit Plan, other than amended Tax Return reflecting a material increase in the ordinary course amount of business consistent with past practice, Taxes shown or (D) except as permitted in clause enter into any closing agreement relating to a material amount of Taxes;
(Bxii) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action or fail to fund take any action which action or failure to act would result in any other way secure the payment material loss or material reduction in value of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planthe Company Intellectual Property Rights; or
(xivxiii) (A) take, agree to take or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, commitment to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of actions described in the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(aforegoing clauses (i) through (xii), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1During the period from the date of this Agreement to the Closing, the Primary Sellers shall cause the Company to conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and Closing, except as otherwise contemplated by required hereby in connection with this Agreement), the Primary Sellers shall not permit the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in do any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, following without the prior written consent of Parent:
the Purchaser: (i) except amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for the issuance or sale (including, but not limited to, by way of Shares upon stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of Options outstanding on warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement and in accordance with their present termsAgreement; (iii) declare, issueset aside, sell, grant, dispose of, pledge make or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge pay any dividend or other encumbrance of distribution (Awhether in cash, stock or property) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right with respect to subscribe for any shares of capital its common stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) split, combine, subdivide enter into any material contract or reclassify any Shares agreement or declare, set aside for payment or pay any dividend, material transaction or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, material capital expenditure other than dividends those relating to the transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidationthis Agreement, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make create, incur, assume, maintain or permit to exist any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than indebtedness except as otherwise incurred in the ordinary course of business business, consistent with past practice;
, or except for the Company Closing Obligations, (vii) sellpay, leasedischarge or satisfy claims or liabilities (absolute, licenseaccrued, mortgage contingent or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viiiotherwise) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or except for the Company Closing Obligations, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments inin financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other personPerson, other than (xi) alter in any material way the manner of keeping the books, accounts or records of the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), accounting practices therein reflected other than the paymentalterations or changes required by GAAP or applicable law, discharge(xii) enter into any indemnification, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill contribution or similar agreements contract pursuant to which the CompanyCompany may be required to indemnify any other Person or make contributions to any other Person, or any of its Subsidiaries is a party;
(xiixiii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase existing contracts in any manner that would result in any material liability to the compensation Company for or fringe benefits ofon account of such amendment or termination, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) takechange any existing or adopt any new tax accounting principle, method of accounting or agree tax election except as provided herein or commit agreed to take, any action that would make any representation or warranty of in writing by the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingPurchaser.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from (a) From the date of this Agreement hereof to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement)Closing, the Sellers shall cause the Company will and the Subsidiary to conduct its operations according to its their business only in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoingpractice, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, neither the Company will notnor the Subsidiary shall, and will not permit any of unless Buyer gives its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
approval, (i) except for the issuance amend or otherwise change its certificate of Shares upon the exercise of Options outstanding incorporation or bylaws, as each such document is in effect on the date of this Agreement and in accordance with their present termshereof, issue, (ii) issue or sell, grant, dispose of, pledge or otherwise encumber, or authorize for issuance or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or issue, grant, or enter into any rightssubscription, warrantsoption, optionswarrant, callsright, commitments convertible security, or any other agreements agreement or commitment of any character obligating the Company or the Subsidiary to purchase issue securities, (iii) declare, set aside, make, or acquire pay any shares of dividend or other distribution with respect to its capital stock or (provided, however, that the Company may declare and pay dividends in such amount as will not cause any securities or rights convertible intodownward adjustment to the Purchase Price pursuant to Section 1.3 hereof), exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase purchase, or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) splitexcept in the ordinary course of business, combinesell, subdivide or reclassify any Shares or declarepledge, set aside for payment or pay any dividenddispose of, or make encumber, or agree to sell, pledge, dispose of, or encumber, any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary assets of the Company,
, or authorize any capital expenditure, (ivvi) adopt a plan of complete or partial liquidation, dissolution, acquire (by merger, consolidation, restructuringor acquisition of stock or assets) any corporation, recapitalization partnership, or other reorganization business organization or division thereof, or enter into any contract, agreement, commitment, or arrangement with respect to any of the Company foregoing, (vii) except in the ordinary course of business, incur any indebtedness for borrowed money, issue any debt securities, or enter into or modify any of its direct contract, agreement, commitment, or indirect Subsidiaries arrangement with respect thereto, (other than the Merger),
(vviii) adopt enter into, amend, or terminate any amendments to its Certificate of Incorporation employment agreement with any director, officer, or By-laws key employee or alter through mergersales representative, liquidationenter into, reorganizationamend, restructuring or in terminate any employment agreement with any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other person otherwise than in the ordinary course of business consistent business, or take any action with past practice;
(vii) sell, lease, license, mortgage respect to the grant or otherwise encumber or subject to any Lien or otherwise dispose payment of any severance or termination pay other than pursuant to policies or agreements of its properties the Company or assetsthe Subsidiary in effect on the date hereof, except sales (ix) enter into, extend, or renew any lease for office or manufacturing space otherwise than in the ordinary course of business consistent with past practice and Liens existing business, (x) except as required by law, adopt, amend, or terminate any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment, or other employee benefit plan, agreement, trust, fund, or arrangement for the benefit or welfare of any officer, employee, or sales representative, or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity (provided that this clause (x) shall not prohibit any bonus payments prior to the Closing to either of the date of this Agreement;
Sellers), (viiixi) (A) incur grant any indebtedness for borrowed money or guarantee increase in compensation payable following the Closing to any such indebtedness of another persondirector, officer, or issue key employee or sell sales representative, (xii) grant any debt securities increase in compensation to any other employee or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than sales representative except in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required take any action which decelerates the payment of accounts payable.
(b) From the date hereof to the Closing, the Sellers shall cause the Company and the Subsidiary to purchase raw materials and to maintain inventories at levels consistent with historical practice.
(c) From the date hereof to the Closing, the Sellers shall cause the Company and the Subsidiary to continue to pay their payables in a manner consistent with historical practice.
(d) From the date hereof to the Closing, the Sellers shall cause the Company and the Subsidiary to use their best efforts to preserve intact the business organization of the Company and the Subsidiary, to keep available in all material respects the services of its present officers and key employees, to preserve intact its banking relationships and credit facilities, to preserve the goodwill of those having business relationships with it, and to comply with all applicable lawlaws.
(e) From the date hereof to the Closing, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Sellers will cause the Company or any of and the Subsidiary to use their best efforts to maintain their real property, equipment, and other personal property in its Subsidiaries (collectivelypresent operating condition and repair, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; orwear and tear excepted.
(xivf) (A) takeFrom the date hereof to the Closing, or agree or commit to take, any action that would make any representation or warranty of the Sellers will cause the Company hereunder inaccurate at and the Effective Time (except for representations and warranties which speak as of a particular dateSubsidiary to use their best efforts to preserve their relationships with suppliers, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be curedcustomers, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, others with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingwhom they have business dealings.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1consented to in writing by Acquiror Company, the Company will notwhich consent shall not be unreasonably withheld, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on between the date of this Agreement and the Closing Date, the Shareholders shall cause the Company to, conduct its business in accordance with the ordinary course and use commercially reasonable efforts to preserve substantially intact its business, keep available the services of their present termsofficers and employees, issuepreserve in all respects their present business relationships and goodwill, sellretain all Company Intellectual Property and to make all capital expenditures as currently planned or as necessary, grantin each case in the ordinary course of business. Except as set forth on Schedule 6.1, dispose ofbetween the date of this Agreement and the Closing Date, pledge the Shareholders shall not permit the Company to, and shall procure that the Company does not:
(a) amend its Organizational Documents;
(b) organize any Subsidiary or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) acquire any additional shares of capital stock of any class Person or any equity or ownership interest in any business, dispose of any Subsidiary, start up any new business or merge, consolidate or enter into any share exchange with or into any other Person (including except the Sharestransactions contemplated by this Agreement);
(c) issue, sell or otherwise dispose of any of its equity interests, or create or suffer to be created any securities or rights convertible into, exchangeable forencumbrance thereon, or evidencing the right to subscribe for reclassify, split up or otherwise change any shares of capital stockits equity interests, or grant or enter into any rights, warrants, options, calls, commitments covenants or any calls or other agreements of any character rights to purchase or acquire convert any shares obligation into any of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofits equity interests;
(iid) redeemincur or guarantee any Indebtedness for borrowed money or incur any obligation or liability (contingent or otherwise) to a third party, purchase or otherwise acquire, or propose except to redeem, purchase or otherwise acquire, any the extent required in the ordinary course of its outstanding Sharesbusiness and for contracts and agreements entered into in the ordinary course of business;
(iiie) splitpay, combinedischarge or satisfy any claim, subdivide liability or reclassify any Shares obligation (whether fixed or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as suchcontingent), other than dividends by a direct in the ordinary course of business;
(f) make any loans or indirect wholly owned Subsidiary advances in excess of $10,000 in the aggregate to any Person, other than extensions of credit to customers and expense allowances and advances to employees of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case in the ordinary course of business;
(g) make, grant or enter into any (i) increase in the compensation of, or benefits or severance payable to, any employee of the Company, other than customary adjustments in compensation consistent with past practice or (ii) agreement to hire any employee other than in the ordinary course of business consistent with past practicepractices;
(viih) sell, assign, transfer, convey, lease, licensepledge, mortgage encumber or otherwise dispose of or agree to sell, assign, transfer, convey, lease, pledge, encumber or subject to any Lien or otherwise dispose of any assets or properties of its properties or assetsthe Company with an aggregate book value in excess of $10,000, except other than (i) sales of inventory in the ordinary course of business consistent with past practice and Liens existing as (ii) the disposition of used or worn out equipment or other tangible personal property no longer used in the business of the date of this AgreementCompany;
(viiii) (A) incur cancel any indebtedness debts to the Company in excess of $10,000 in the aggregate, except for borrowed money or guarantee any such indebtedness cancellations of another personbad debts made in the ordinary course of business, or issue or sell waive any debt securities or warrants or other rights to acquire any debt securities or claims of the Company in excess of $10,000, except for waivers, compromises or other adjustments of rights or claims against customers or suppliers made in the ordinary course of business;
(j) settle any Proceeding against the Company;
(k) change its accounting methods or classifications, except as required by GAAP;
(l) enter into any agreement, contract, commitment or arrangement which involves any joint venture, partnership or other arrangement involving sharing of its Subsidiariesprofits with any Person or that would restrict the Company from carrying on business anywhere in the world;
(m) enter into any agreement, contract, commitment or (B) make arrangement that would be required to be listed on Schedule 4.2.14 or amend, modify or terminate any loans or advances, Material Company Contract other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Companybusiness;
(ixn) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any a material tax election or change to a material election in respect of Taxes, amend any Tax Return, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement to which the Company is a party, settle or compromise any material income tax liabilityclaim or assessment in respect of Taxes; or take any action with respect to the computation of Taxes or the preparation of Tax Returns that is inconsistent with past practice;
(xio) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of businessother manner, modify, amend change or terminate any contract or agreement to which otherwise alter the Company or any fundamental nature of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director the business of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planpresently conducted; or
(xivp) (A) take, or agree or commit enter a binding commitment to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do perform any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during During the period from the date of this Agreement to until the Effective Time Time, the Company shall, and shall cause each of its Subsidiaries to (unless Parent shall otherwise agree approve in writing (which consent shall not be unreasonably withheld) and except as otherwise expressly contemplated by or provided in this Agreement):
3.1.1. conduct its businesses in the ordinary and usual course consistent with past practice in all material respects and, to the extent consistent therewith, use reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with employees, customers, clients, suppliers, creditors, lessors, employees and business associates;
3.1.2. not (i) amend, or propose any change in, the articles of incorporation or by-laws of the Company or any of its Subsidiaries; (ii) split, combine, subdivide or reclassify any of the outstanding shares of capital stock of the Company or any of its Subsidiaries; or (iii) adopt a plan of complete or partial liquidation;
(i) not declare, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any of its capital stock or any securities convertible, exchangeable or exercisable for or into shares of its capital stock, other than dividends paid to the Company or to wholly owned Subsidiaries of the Company by any of the Subsidiaries of the Company; and (ii) not repurchase, redeem or otherwise acquire any shares of its capital stock, or any securities convertible, exchangeable or exercisable for or into any shares of its capital stock;
3.1.4. not (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind to acquire, its capital stock (other than Company Common Shares issuable upon the exercise of Company Stock Options outstanding on the date of this Agreement under the Company Stock Plans or pursuant to the Company's Employee Stock Purchase Plan); (ii) incur or modify in any material respect (x) any material indebtedness or any of the terms of any material indebtedness or (y) any other liability except in the ordinary and usual course of business; (iii) enter into any merger, reorganization, consolidation or share exchange; (iv) sell, lease, license to any Person(s) or otherwise dispose of any business or any assets, outside the ordinary and usual course of business (by merger, consolidation, stock or asset disposition or otherwise); or (v) purchase, lease or license from any Person or otherwise acquire any assets and/or business(es) (by merger, consolidation, stock or asset acquisition or otherwise), except for such purchases, leases, or acquisitions requiring payments which do not in the aggregate exceed $300,000 in any single purchase, lease or acquisition (or series of related transactions), or enter into any agreement with respect to any of the foregoing;
3.1.5. except as set forth on Schedule 3.1.5 of the Company will conduct its operations according to its Disclosure Schedule, not (i) terminate, establish, adopt, enter into, implement, make any new grants or awards of equity-based compensation or other benefits under, amend or otherwise modify any compensation or benefit plan or outstanding award thereunder or agreement or increase the salary, wage, bonus or other compensation of any directors, officers or employees, or enter into or adopt any employment or severance agreement or arrangement except for increases in salary, wages or non-equity bonus compensation or non-equity benefits for employees other than directors or executive officers in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organizationpractice, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeemcause the acceleration of the time of payment or vesting or trigger any payment or funding of any compensation, purchase benefits or otherwise acquireawards, or propose to redeem, purchase or otherwise acquireunder any Company Employment Agreement, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company Employee Plan or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through mergerCompany Foreign Plan, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), except in each case other than as required by applicable Company Employment Agreement, Company Employee Plan or Company Foreign Plan pursuant to the terms in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing effect as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (Aiii) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant permit a cashless exercise of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stockexcept as currently permitted by the Company Stock Plans, or (iv) settle the removal exercise of existing restrictions stock options in other than Company Common Shares;
3.1.6. not take any Benefit Plans action or agreement omit to take any action which to the knowledge of the Company Officers would prevent, materially delay or awards made thereundermaterially impede the consummation of the Merger or the other transactions contemplated by this Agreement, or take any action that would cause the Merger to fail to qualify as a reorganization under Section 368 of the Code;
3.1.7. not waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any provision of any standstill agreement;
3.1.8. not enter into, or modify, amend the terms of, or terminate any material joint venture, partnership or similar arrangement or any material contract;
3.1.9. not (i) change its (w) Tax accounting policies, practices or methods, or (Ex) other than in the ordinary course of business consistent Tax elections; and (ii) settle any material audits, examinations or litigation with past practice, respect to Taxes;
3.1.10. not take any action to fund cause the Company Common Shares to cease to be listed on the Nasdaq;
3.1.11. except for any change which is not material or which is required by reason of a concurrent change in U.S. GAAP, not change any other way secure the payment method or principle of compensation accounting or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; oraccounting practice used by it;
(xiv) (A) take, or agree or commit to take, 3.1.12. not take any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at at, or as of any time prior to, the Effective Time Time;
3.1.13. not adopt, enter into or amend to increase benefits or obligations any pension or retirement plan, trust or fund and not adopt, enter into or amend in any material respect any bonus, profit sharing, compensation, stock option, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employees or retirees generally, other than in the ordinary course of business, except (except for representations and warranties which speak i) as of a particular daterequired to comply with changes in applicable law, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (Cii) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions foregoing involving any such then existing plans, agreements, trusts, funds or arrangements of any company acquired after the Merger set forth in Article VI date hereof, or (iii) as required pursuant to an existing contractual arrangement or agreement;
3.1.14. not being satisfied except that, (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the condition ordinary course of business (other than pursuant to credit facilities) or borrowings under the existing credit facilities of the Company or any of its Subsidiaries or borrowings under the credit facilities to be entered into substantially on the terms set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties 3.1.14 of the Company's Board of Directors Company Disclosure Schedule as such facilities may be amended in a manner that does not have a Material Adverse Effect on the Company up to the Company's stockholders under applicable law; orexisting borrowing limit on the date hereof;
(xv) authorize3.1.15. not enter into any contract or commitment or make expenditures, recommendincluding, propose or announce an intention to do any of the foregoingbut not limited to, capital expenditures, or enter into any contract, agreement, binding commitment or arrangement contract to do make expenditures, (i) other than any contract or commitment (or series of related contracts or commitments) providing for the provision of services by the Company or any of its Subsidiaries to any new client of the Company or any of its Subsidiaries which is reasonably expected to generate less than $2 million in revenues over its term or (ii) other than contracts or commitments which are reasonably expected to involve payments by or to the Company or any of its Subsidiaries of less than $300,000 in any single contract or commitment (or series of contracts or commitments relating to the same matter) over its term; provided, that this clause (ii) does not apply to those contracts or commitments which are referred to in clause (i) of this paragraph;
3.1.16. timely satisfy, or cause to be timely satisfied, all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement, including, without limitation, the reporting requirements contained in United States Treasury Regulation Section 1.367(a)-3(c)(6), which covenant shall continue after the Effective Time until such time as all such reporting and filing requirements are satisfied;
3.1.17. use best efforts to obtain waivers, by March 15, 2001, under its credit facility with First Union Bank dated December 28, 1999, as amended from time to time, and its credit facility with AmSouth Bank dated December 8, 2000, as amended from time to time, so that the Company shall no longer be in violation of its covenants thereunder;
3.1.18. subject to restrictions imposed by applicable law, confer with one or more representatives of Parent to report operational matters of materiality and the general status of ongoing operations; or
3.1.19. not authorize or enter into an agreement to take any of the foregoingactions referred to in subsections 3.1.2 through 3.1.15.
Appears in 1 contract
Samples: Merger Agreement (Cgi Group Inc)
Interim Operations of the Company. Except The Company covenants and agrees as set forth on Schedule 5.1to itself and its Subsidiaries that, during the period from after the date of this Agreement hereof and prior to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth on Schedule 5.1, in Section 6.1. of the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective TimeDisclosure Schedule), without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed:
(ia) except for The business of the issuance of Shares upon Company will be conducted only in the exercise of Options outstanding on the date of this Agreement ordinary and usual course in accordance material compliance with their present termsapplicable laws, issueregulations, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofand contractual obligations;
(iib) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution No change will be made in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or the By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vic) make No change will be made in the authorized, issued or outstanding capital stock of the Company, no additional shares of such capital stock will be issued and no subscriptions, options or other convertible securities, commitments or agreements relating to the authorized, issued or outstanding capital stock of the Company will be issued, granted, created or entered into, excluding exercise of previously-granted options and warrants in accordance with their terms as contemplated in this Agreement;
(d) No dividend or other distribution or payment will be declared, set aside, paid or made in respect of shares of the capital stock or options or warrants of the Company, nor will the Company, directly or indirectly, repurchase, retire, redeem or otherwise acquire capital stock, warrants or options of the Company or otherwise distribute any acquisitionprofits of the Company;
(e) The Company will not merge, by means of merger, consolidation amalgamate or otherwiseconsolidate with any corporation other than Merger Subsidiary pursuant to this Agreement, or dispositionacquire all or substantially all of the business or assets of any other Person, business organization, entity or enterprise, or acquire ownership or control of assets any capital stock, bonds, or other securities of, or any property interest in, any business organization, entity or enterprise or acquire control of the management or policies thereof.
(f) Except as set forth on Section 6.1. of the Company Disclosure Schedule hereto, the Company will not:
(i) enter into, create or assume (or in the case of clause (C) permit to exist): (A) any obligation or obligations for borrowed money or the deferred purchase price of any property (including under leases required to be capitalized under U.S. GAAP); or (B) any security agreement, mortgage, deed of trust, pledge, conditional sale or other than the Merger), in each case title retention agreement other than in the ordinary course of business consistent as heretofore conducted; or (C) any Lien upon any of its properties or assets whether now owned or hereafter acquired (other than, with respect to tangible property and assets, in the ordinary course of business as heretofore conducted);
(ii) assume, guarantee, endorse or otherwise become liable with respect to the obligations of any Person, business organization, entity or enterprise, except for endorsements for collection of negotiable instruments in the ordinary course of business as heretofore conducted;
(iii) make any loan or advance to, or assume, guarantee, endorse or otherwise become liable with respect to the capital stock or dividends of, any Person, business organization, entity or enterprise except in the ordinary course of business as heretofore conducted;
(iv) enter into any transaction with or create or assume any obligation or liability to, any stockholder, warrantholder or optionholder of the Company or any Affiliate, agent or relative of any stockholder, warrantholder or optionholder of the Company;
(v) effect any material increase or any other material change in wages, salaries, commissions, compensation, bonuses, incentives, pension or other benefits payable, or create, enter into or announce any new agreement, plan, program, policy or arrangement to pay pensions, retirement allowances or other employee benefits to any director or employee, whether past practiceor present;
(vi) cancel or compromise any debt or claim, except in the ordinary course of business as heretofore conducted, or waive any rights of substantial value;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of change any of its properties banking arrangements without notice thereof to Parent or assetsgrant any powers of attorney;
(viii) make any Tax election or settle or compromise any material Tax liability or settle or compromise;
(ix) make any capital expenditures, except sales those made in the ordinary course of business consistent with past practice and Liens existing as of which do not exceed $25,000 in the date of this Agreement;aggregate.
(viiig) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other Other than in the ordinary course of business consistent with past practiceas heretofore conducted, the Company will not sell, lease, abandon, assign, transfer, license or otherwise dispose of or encumber any property, including Intellectual Property or any capital contributions to, or investments in, any other person, other than the Company intangible assets or any direct machinery, equipment or indirect wholly owned Subsidiary of the Companyother operating property or tangible assets;
(ixh) make The Company will not enter into or agree to make assume any new capital expenditure contract, agreement or expenditures commitment which, individuallyby reason of its size, term or other factor, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, not in the ordinary course of business as heretofore conducted;
(i) The Company will not take any action, or omit to take any action, which would have, or could reasonably be expected to have, a Company Material Adverse Effect;
(j) The Company will use its best efforts in a manner consistent with past practice or in accordance with their terms, to preserve the business organization of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in intact and to keep available the ordinary course services of the present employees and agents of the Company and to preserve the good will of customers, suppliers, employees, agents and, others having business consistent relations with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xiik) except The Company will use its reasonable efforts to maintain all assets owned, leased or regularly used by it in the good operating condition and repair, ordinary course of businesswear and tear excepted, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claimsand will maintain existing insurance coverage on such assets as well as other existing insurance coverage;
(xiiil) except as required to comply with applicable lawThe Company will maintain its books, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended accounts and records in the usual and ordinary course of business manner, on a basis consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planprior years; orand
(xivm) (A) takeThe Company will pay all registration, maintenance and renewal fees that are due or agree or commit to take, any action that would make any representation or warranty past due in connection with each item of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoingRegistered Intellectual Property.
Appears in 1 contract
Interim Operations of the Company. Except (a) From the date hereof to the Closing, the Company shall conduct its business (including the Business) only in the Ordinary Course of Business, and the Company shall not, unless Parent or Merger Sub gives its prior written approval or as otherwise set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent6.2:
(i) except amend or otherwise change the Company's Charter or bylaws, as each such document is in effect on the date hereof;
(ii) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stock other than shares of Company Common Stock issued upon the issuance conversion of Shares shares of Series A Preferred outstanding on the date hereof or issued upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiii) issue, grant or enter into any subscription relating to, any option, warrant, right, convertible security or other Contract of any character obligating the Company to issue securities;
(iv) declare, set aside, make or pay any dividend or other distribution with respect to the Company Capital Stock;
(v) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Sharesthe Company Capital Stock;
(iiivi) splitauthorize any capital expenditures or sell or subject to Liens or agree to sell or subject to Liens, combineany assets of the Company except for sales of assets in the Ordinary Course of Business and in any event shall not sell or subject to Liens or agree to sell or subject to Liens any assets in an aggregate amount in excess of $25,000;
(vii) acquire (by merger, subdivide share exchange, consolidation, combination or reclassify acquisition of stock or assets) any Shares Person thereof or declareenter into any Contract with respect to any of the foregoing;
(viii) other than in accordance with the terms hereof, incur any indebtedness for borrowed money, issue any debt securities or enter into or modify any Contract with respect thereto;
(ix) enter into any new Material Contract (excluding any license agreements with new customers entered into in the Ordinary Course of Business), or amend or terminate any existing Material Contract (except in the Ordinary Course of Business);
(x) enter into, amend or terminate any employment or consulting Contract with any director, officer, consultant or key employee of the Company, enter into, amend or terminate any employment Contract with any other Person, or take any action with respect to the grant or payment of any severance or termination pay other than pursuant to policies or Contracts of the Company in effect on the date hereof as set aside forth in Schedule 5.17;
(xi) enter into, extend or renew any lease for payment equipment, office space or other space;
(xii) fail to pay any dividend, or make any other actual, constructive or deemed distribution Accounts Payable of the Company in respect of any Shares or otherwise make any payments to stockholders in accordance with their capacity as suchterms, other than dividends by a direct or indirect wholly owned Subsidiary in the Ordinary Course of the Company,Business;
(ivxiii) adopt a plan of complete sell or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or otherwise transfer any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary Accounts Receivable of the Company;
(vixiv) make except as required by Law, adopt, amend or terminate any acquisitionbonus, by means profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, Contract, trust, fund or arrangement for the benefit or welfare of merger, consolidation any officer or otherwiseemployee of the Company, or disposition, withdraw from any multi-employer plan so as to create any Liability under Article IV of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practiceERISA to any Person;
(viixv) pay (except for salary under existing employment Contracts, advances to salesmen in the Ordinary Course of Business, and directors' fees under standard terms in effect prior to the date hereof), loan or advance any amount to, or sell, leasetransfer or lease any properties or assets to, licenseor enter into any Contract with, mortgage any of their officers or otherwise encumber directors or subject to any Lien Affiliate, associate or otherwise dispose near relative of any of its properties their officers or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreementdirectors;
(viiixvi) except in the Ordinary Course of Business, write down (Aor write up) incur the value of any indebtedness for borrowed money inventory or guarantee write off as uncollectible any such indebtedness Accounts Receivable;
(xvii) cancel any debts or waive any claims or rights of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advancessubstantial value, other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(xviii) dispose of or permit to lapse any rights to the use of any patent, trademark, trade name, copyright or other intangible asset, or dispose of or disclose to any capital contributions toPerson any trade secret, formula, process or investments inknow-how not theretofore a matter of public knowledge;
(xix) change any of the banking or safe deposit arrangements described in Schedule 5.24 hereto, except in the Ordinary Course of Business;
(xx) grant or extend any other personpower of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise, in respect of the obligation of any Person;
(xxi) make any change in financial or tax accounting methods, principles or practices or make or cause to be made any elections on Returns of the Company, unless required by GAAP or applicable Law;
(xxii) extend credit in the sale of products, collection of receivables or otherwise, other than in the Company Ordinary Course of Business;
(xxiii) fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a basis consistent with prior years;
(xxiv) grant any increase in compensation, or grant or make any direct bonus or indirect wholly owned Subsidiary other compensatory payments, to any director, employee or consultant of the Company;
(ixxxv) make or agree revoke any Tax election that could reasonably be expected to make any new capital expenditure or expenditures whichhave a Material Adverse Effect, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) payTax Liability, dischargefile any amended Tax Return, settle or satisfy file any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), Tax Return other than Tax Returns with respect to current Taxes that become due after the payment, discharge, settlement or satisfaction, in the ordinary course date of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Planthis Agreement; or
(xivxxvi) (A) takeagree, whether in writing or agree or commit to takeotherwise, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(b) From the date hereof to the Closing, the Company shall use its commercially reasonable best efforts to preserve intact the business organization of the Company, to keep available in all material respects the services of their present officers and employees, to preserve intact their banking relationships and credit facilities, to preserve intact their relationships with their customers and vendors, to preserve the goodwill of those having business relationships with them, and to comply with all applicable Laws in all material respects.
Appears in 1 contract
Samples: Merger Agreement (Impath Inc)
Interim Operations of the Company. Except From the Effective Date until the Closing or earlier termination of this Agreement pursuant to Section 8.1, except as set forth on Schedule 5.1, during the period from the date of 6.1 or as expressly required or permitted by this Agreement (including with respect to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this AgreementRollover), the Company will shall, and shall cause each of the Subsidiaries to, (w) conduct its business and operations according in the ordinary course, in all material respects, (x) use commercially reasonable efforts to maintain its ordinary assets and usual course of business consistent with past practice properties and seek to preserve intact its current business organization, keep available the services of its current officers organization and employees and preserve its relationships with customers, employees, suppliers and others having business dealings with it it, (y) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice, and (z) use commercially reasonable efforts to preserve intact the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Timeoperations of its business. Without limiting the generality of the foregoing, and except as otherwise contemplated by from the Effective Date until the Closing or earlier termination of this Agreement or pursuant to Section 8.1, except as set forth on Schedule 5.16.1 or as expressly required or permitted by this Agreement, unless Buyer has previously consented thereto in writing (which consent will not be unreasonably withheld, conditioned, or delayed), the Company will shall not and shall cause its Subsidiaries to not:
(a) incur any indebtedness for borrowed money or issue any long-term debt securities or assume, guarantee or endorse such obligations of any other Person, except for borrowings made for working capital purposes in the ordinary course of business consistent with past practice under the Credit Facility, obligations under customer contracts, and will not permit reasonable and ordinary course advances for travel and other normal and reasonable business expenses to officers and employees, in each case incurred in the ordinary course of business;
(b) except in the ordinary course of business consistent with past practice, (i) acquire, purchase, sell, assign, lease, abandon, transfer or otherwise obtain, or dispose of, any material property or assets; (ii) mortgage, encumber or otherwise subject to any Lien any property or assets, other than Permitted Liens; (iii) expressly cancel any debts owed to or claims held by the Company or the Subsidiaries; (iv) grant any license of any Company Intellectual Property other than licenses granted in the ordinary course of business; or (v) fail to exercise any rights of renewal with respect to any Leased Real Property that by its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:terms would otherwise expire;
(i) except for Contracts made in the issuance ordinary course of Shares upon business consistent with past practice, enter into any Contract that is or would constitute a Material Contract if entered into on or prior to the exercise Effective Date; or (ii) materially amend, terminate, or fail to renew any Material Contract;
(d) enter into any Contracts with any Affiliates of Options outstanding the Company (other than a Subsidiary);
(e) except to the extent required by Law or any existing Employee Plan set forth on Schedule 4.11(a): (i) establish, enter into, adopt, amend or terminate, or accelerate the time of payment, vesting or funding of any compensation or benefits under, any Employee Plan (including any plan or arrangement that would be an Employee Plan if it was in effect on the date hereof) relating to the compensation, benefits or severance of this Agreement and in accordance with their present termsany current or former Covered Individual; (ii) establish, issueadopt, sellenter into or amend any written or oral agreement, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge memorandum of understanding or other encumbrance of contractual obligation between any WU Company and any labor organization or other authorized employee representative representing individuals who provide services to any WU Company; (iii) increase the compensation payable or to become payable to (A) any additional shares Covered Individual earning annual base salary of capital stock of any class (including the Shares)over $150,000, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities Covered Individual other than in the ordinary course of business consistent with past practice; or (iv) hire or terminate (other than for “cause”) any individual with annual base salary in excess of $150,000;
(f) implement any employee layoffs that implicate the Worker Adjustment and Retraining Notification Act of 1988 or any similar Law;
(g) make any material change to its accounting methods, principles or practices, except as may be required by GAAP or applicable Law;
(h) other than in accordance with past practice or as required by GAAP, the Code or applicable Law, (i) make any material election relating to Taxes, (ii) settle any material audit, examination or other proceeding by any Taxing Authority, (iii) file any amended Tax Return or file any Tax Return, (iv) surrender any right to claim a Tax refund, (v) consent to or request any extension or waiver of any statute of limitations period relating to Taxes;
(i) make any amendment to its certificate of incorporation, certificate of formation, bylaws or operating agreement (or equivalent organizational documents);
(j) declare, set aside, make or pay any dividends or distributions (in each case, whether in cash, stock, property or otherwise) in respect ofof the Equity Securities of any WU Company;
(k) issue, in lieu sell, grant or otherwise dispose of, or authorize the issuance, sale, grant or other disposition of, any Equity Securities of any WU Company, in substitution for, Shares each case other than the issuance of shares of Company Stock upon the exercise of Options issued and outstanding on as of the date hereofEffective Date;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iiil) split, combine, subdivide redeem or reclassify reclassify, or purchase or otherwise acquire any Shares or declareEquity Securities of any WU Company, set aside for payment or pay any dividendas applicable, or make any other actualchange with respect to the capital structure of the WU Companies, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, each case other than dividends by a direct or indirect wholly owned Subsidiary the issuance of shares of Company Stock upon the exercise of Options issued and outstanding as of the Company,Effective Date;
(ivm) acquire, by merging or consolidating with, by purchasing a substantial equity interest in or substantial portion of the assets of, or otherwise, any other Person;
(n) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of the Company or any of its direct or indirect Subsidiaries (other than and the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the CompanySubsidiaries;
(vio) make settle or compromise any acquisitionAction, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than an Action that does not involve (i) the Merger), imposition of equitable relief against any WU Company and (ii) future payments or obligations in each case other than in the ordinary course excess of business consistent $50,000 with past practicerespect to such Action;
(viip) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is commitments in excess of $100,000 or, 250,000 in the aggregate, are any individual case or in excess of $600,000500,000 in the aggregate;
(xq) make any material tax election fail to renew or settle or compromise any material income tax liability;
(xi) payreplace, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their on commercially reasonable terms, of liabilities reflected any Company Policies that are canceled or reserved against in, or contemplated by, lapse prior to the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanClosing; or
(xivr) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, in writing to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions actions described in the foregoing clauses of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in this Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing6.1.
Appears in 1 contract
Interim Operations of the Company. Except During the period from the date of this Agreement to the closing of the Offer, except with the prior written consent of Parent or as specifically contemplated by this Agreement or as set forth in the Company Letter, the Company shall, and shall cause each of its subsidiaries to, carry on Schedule 5.1their respective businesses in the ordinary course consistent with past practice in all material respects (including by paying all of its debts and taxes when due, subject to good faith disputes over such debts or taxes). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality closing of the foregoingOffer, and except with the prior written consent of Parent or as otherwise specifically contemplated by this Agreement or as set forth on Schedule 5.1in the Company Letter, the Company will shall not, and will shall not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity or voting interests, except for dividends by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its capital stock or other equity or voting interests, or issue or authorize the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, of or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any for shares of its outstanding Shares;
capital stock or other equity or voting interests, (iii) splitpurchase, combine, subdivide redeem or reclassify otherwise acquire any Shares shares of capital stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, except pursuant to forfeiture or repurchase conditions as in effect as of the date of this Agreement or in connection with the exercise, vesting or tax withholding provisions of the agreements under which Company Options, Company SARs or Company RSUs were or may be granted, (Biv) make take any loans action that would result in any amendment, modification or advances, change of any material term of any indebtedness (other than in the ordinary course accounts payable to trade creditors) of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct of its subsidiaries, or indirect wholly owned Subsidiary of (v) adopt or enter into any “shareholder rights plan” or similar anti-takeover agreement or plan in a manner that would adversely affect Parent’s ability to consummate the Companytransactions contemplated by this Agreement;
(ixb) make issue, deliver, sell, pledge or agree to make otherwise encumber any new shares of its capital expenditure stock, any other equity or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make voting interests or any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against insecurities convertible into, or contemplated byexchangeable for, the most recent consolidated financial statements Company Shares (or the notes theretoexcept that: (1) included in the Company SEC Reports may issue Company Shares: (A) upon the exercise of Company Options, Company SARs or incurred Company RSUs outstanding as of the date of this Agreement or issued as described in (2) below; and (B) pursuant to the ordinary course of business consistent with past practicePurchase Plan; (2) the Company may, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xiiw) except in the ordinary course of business, modifyand consistent with past practices as to timing and amount, amend grant or terminate any contract or agreement to which the issue Company or any of its Subsidiaries is a partyOptions, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits Company SARs and/or Company RSUs to any current newly hired employee or former employee, officer or director newly promoted employee of the Company or any of its Subsidiaries under the Company Stock Plans and (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business x) consistent with past practicepractices, make a specific grant to any non-officer employee of the Company and its Subsidiaries of Company Options, Company SARs and/or Company RSUs under the Company Stock Plans where the Chief Executive Officer of the Company determines that doing so is reasonably necessary to prevent such employee from terminating employment with the Company or its Subsidiaries; and (B3) increase the Company may grant or issue Company Options, Company SARs and/or Company RSUs to members of the Company Board in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business connection with annual “refresh” grants consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.practices;
Appears in 1 contract
Interim Operations of the Company. Except The Company covenants and agrees that, except (i) as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), or (ii) as agreed in writing by Parent, after the date hereof, and prior to the time the directors of the Purchaser have been elected to, and shall constitute a majority of, the Board of Directors of the Company will conduct pursuant to Section 1.3 (the "Appointment Date"):
(a) the business of the Company and its operations according to its Subsidiaries shall be conducted only in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, business;
(b) the Company will not, and will not permit directly or indirectly, (i) sell, transfer or pledge or agree to sell, transfer or pledge any Company Common Stock or capital stock of any of its Subsidiaries tobeneficially owned by it, prior to either directly or indirectly; (ii) amend its Certificate of Incorporation or By-laws or similar organizational documents; or (iii) split, combine or re classify the Effective Timeoutstanding Company Common Stock or any outstanding capital stock of any of the Subsidiaries of the Company;
(c) except for those actions contemplated in Section 1.2, without neither the prior written consent Company nor any of Parent:
its Subsidiaries shall: (i) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock except for its regular quarterly cash dividend on the Company Common Stock; (ii) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of the Company or its Subsidiaries, other than shares of Common Stock reserved for issuance on the date hereof upon exercise of Shares upon outstanding Rights pursuant to the Rights Agreement or issuances pursuant to the exercise of Options outstanding on the date of this Agreement and in accordance with their present termshereof; (iii) transfer, issuelease, license, sell, grantmort- gage, pledge, dispose of, pledge or otherwise encumberencumber any material assets other than in the ordinary and usual course of business and consistent with past practice including, without limitation, any transfer or authorize sale of any precious metal inventories set forth on Schedule 3.17, except in the ordinary course of business consistent with past practice, it being understood that any permanent reduction, liquidation or propose increase in the issuance, sale, disposition Company's precious metals inventory position will not be made without Parent's consent; (iv) incur or pledge modify any material indebtedness or other encumbrance material liability, other than in the ordinary and usual course of (A) any additional shares business and consistent with past practice, provided that the Company may borrow money for use in the ordinary and usual course of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock business; or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiv) redeem, purchase or otherwise acquire, acquire directly or propose to redeem, purchase or otherwise acquire, indirectly any of its capital stock other than redemption of the outstanding SharesRights pursuant to the Rights Agreement;
(d) neither the Company nor any of its Subsidiaries shall modify, amend or terminate any of its Material Agreements or waive, release or assign any material rights or claims, except in the ordinary course of business and consistent with past practice;
(e) neither the Company nor any of its Subsidiaries shall permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Parent, except in the ordinary course of business and consistent with past practice;
(f) neither the Company nor any of its Subsidiaries shall: (i) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other person, except in the ordinary course of business and consistent with past practice; (iii) splitmake any material loans, combine, subdivide advances or reclassify any Shares or declare, set aside for payment or pay any dividendcapital contributions to, or make investments in, any other actual, constructive or deemed distribution in respect person (other than to Subsidiaries of any Shares or otherwise make any payments to stockholders in their capacity as suchthe Company), other than dividends by a direct in the ordinary course of business and consistent with past practice; or indirect wholly owned Subsidiary of the Company,
(iv) enter into any material commitment or transaction with respect to any of the foregoing (including, but not limited to, any borrowing, capital expenditure or purchase, sale or lease of assets);
(g) neither the Company nor any of its Subsidiaries shall change any of the accounting methods used by it unless required by GAAP;
(h) except as permitted in connection with the termination of this Agreement pursuant to Section 7.1(c)(i), neither the Company nor any of its Subsidiaries will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vii) neither the Company nor any of its Subsidiaries will, except as required by law, enter into, adopt, create or amend in any material respect or terminate any benefit plans maintained or contributed to by the Company or any of its Subsidiaries;
(j) neither the Company nor any of its Subsidiaries will make or agree to make any acquisition, by means of merger, consolidation capital expenditure or otherwise, or disposition, of assets or securities (capital expenditures other than capital expenditures in accordance with the Merger), in each case other than Company's 1998 capital expenditure program or in the ordinary course of business consistent with past practice;
(viik) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of neither the Company nor any of its properties Subsidiaries will increase the compensation of any director, executive officer or assetsother key employee of the Company or pay any benefit or amount not required by a plan, except sales agreement, understanding or arrangement as in effect on the date of this Agreement to any such person;
(l) neither the Company nor any of its Subsidiaries will cause a material change in investment policy or a material change in investment vehicles related to the assets in any pension plan, other than actions taken in the ordinary course of business or that are consistent with past practice and Liens existing as of the date of this Agreementor required by its fiduciary duties;
(viiim) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of neither the Company or nor any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits ofSubsidiaries will take, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder contained herein inaccurate at in any material respect at, or as of any time prior to, the Effective Time (except for representations and warranties which speak made as of a particular date, which need be accurate only as of such specific date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xvn) authorize, recommend, propose or announce an intention to do neither the Company nor any of the foregoing, its Subsidiaries will authorize or enter into any contract, agreement, commitment or arrangement an agreement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Handy & Harman)
Interim Operations of the Company. Except During the period from the date of this Agreement to the Closing Date, except with Purchaser's prior specific written consent or as set forth on Schedule 5.1expressly contemplated by this Agreement, the Sellers shall cause the Company to operate its business only in the ordinary and usual course consistent with past practices and to preserve intact its business organization and good will in all material respects. Additionally, during the period from the date of this Agreement to the Effective Time Closing Date, the Sellers shall cause the Company not to do any of the following (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:permitted in writing by Purchaser):
(i) except for the issuance amend its Certificate of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge Incorporation or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofBy-Laws;
(ii) issue, sell or authorize for issuance or sale, shares of any class of its securities (including, but not limited to, by way of stock split or dividend) or any subscriptions, options, warrants, rights or con vertible securities, or enter into any agreements or commitments of any character obligating it to issue or sell any such securities;
(iii) redeem, purchase or otherwise acquire, directly or propose indirectly, any shares of its capital stock or any option, warrant or other right to redeem, purchase or otherwise acquire, acquire any of its outstanding Sharessuch shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete declare or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization pay any dividend or other reorganization of distribution (whether in cash, stock or other property) with respect to its capital stock, except the Company or any payment to the Xxxxxxx Trust of its direct or indirect Subsidiaries (other than pro-rata dividend payment on the Merger),Outstanding Preferred Stock through March 31, 1999.
(v) adopt voluntarily sell, transfer, surrender, abandon or dispose of any amendments to of its Certificate of Incorporation assets or Byproperty rights (tangible or intangible), other than the Non-laws or alter through merger, liquidation, reorganization, restructuring Purchased Assets or in any other fashion the corporate structure or ownership ordinary course of any direct or indirect Subsidiary of the Companybusiness consistent with past practices;
(vi) grant or make any acquisitionmortgage or pledge or subject itself or any of its properties or assets to any lien, by means charge or encumbrance of mergerany kind, consolidation except liens for taxes not currently due;
(vii) create, incur or otherwiseassume any liability or indebtedness, except trade indebtedness in the ordinary course of business consistent with past practices;
(viii) make or commit to make any capital expenditures exceeding in the aggregate Ten Thousand Dollars ($10,000.00);
(ix) become subject to any Guaranty;
(x) apply any of its assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable directly or indirectly to or for the benefit of the Sellers or any Affiliate of the Sellers or any Related Party or to the prepayment of any such amounts, other than payment of salary in the ordinary course consistent with past practice, compensation benefits, and expenses payable in the ordinary course of business to Seller and scheduled lease payments under the Leases listed on Schedule 4.22, including rent on the buildings located at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, XX;
(xi) grant any increase in the compensation payable or to become payable to directors, officers or employees (including, without limitation, any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment);
(xii) except as listed on Schedule 7.1, enter into any agreement which would be a Material Agreement, or dispositionamend or terminate any existing Material Agreement, which is outside the ordinary course of assets business consistent with past practices. With respect to the foregoing, the Sellers shall provide Purchaser with a complete list of any such Material Agreement not entered into in the ordinary course of business between the date hereof and the Closing Date;
(xiii) alter the manner of keeping its books, accounts or securities records, or change in any manner the accounting practices therein reflected;
(other than the Merger)xiv) except as set forth on Schedule 7.1, in each case enter into any commitment or transaction other than in the ordinary course of business consistent with past practicepractices;
(viixv) selldo any act, leaseor omit to do any act, licenseor permit to the extent within the Company's or the Sellers' control, mortgage any act or otherwise encumber omission to act which would cause a violation or subject to any Lien or otherwise dispose breach of any of its properties the representations, warranties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as covenants of the date of Company or the Sellers set forth in this Agreement;
(viiixvi) (A) incur take any indebtedness for borrowed money action which has or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which could have a Material Adverse Effect on the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former on employee, officer customer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plansupplier relations; or
(xivxvii) (A) takeagree, whether in writing or agree or commit to takeotherwise, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree expressly provided in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1may be consented to by EDS, the Company will notshall comply, and will not permit any of its Subsidiaries toFPI shall cause the Company, prior after the date hereof and through the Closing Date, to comply with the Effective Time, without the prior written consent of Parentfollowing:
(a) The Company shall conduct its business only in the ordinary course of business. The Company shall not institute any new methods of operation other than changes made in the ordinary course of business.
(b) The Company shall promptly notify EDS of the occurrence of any Company Material Adverse Effect.
(c) The Company shall not (i) except for the issuance amend, modify, repeal or propose to do so, or permit or consent to any amendment, modification or repeal of Shares upon the exercise its certificate of Options outstanding on the date of this Agreement and in accordance with their present termsincorporation or bylaws, (ii) issue, sell, granttransfer, pledge, dispose of, pledge of or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) encumber any additional shares of capital stock of any class (including the Shares)or series of its capital stock, or any securities convertible into or rights convertible into, exchangeable for, or evidencing the right options, warrants, calls, commitments or rights of any kind to subscribe for acquire, any shares of any class or series of its capital stock, or any rightsstock appreciation right, warrantsphantom stock or similar contract right, options(iii) declare, callsset aside or pay any dividend or other distribution payable in cash, commitments stock or any other agreements of any character property with respect to purchase or acquire any shares of any class or series of its capital stock or any securities or rights convertible into, exchangeable forstock, or evidencing the right to subscribe forotherwise change or alter its cash management practices, (iv) split, combine or reclassify any shares of capital stock any class or series of its stock, or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiv) redeem, purchase or otherwise acquireacquire directly or indirectly any shares of any class or series of its capital stock, or propose any instrument or security which consists of or includes a right to redeemacquire such shares.
(d) The Company shall not, purchase except in the ordinary course of business, (i) create, incur, assume, guarantee, endorse, refinance, modify, extend, renew or otherwise acquirebecome liable for any indebtedness or liability, (ii) pay, agree to cancel or pay, or otherwise provide for a complete or partial discharge in advance of a scheduled payment date with respect to any indebtedness or other liability (except for the repayment prior to December 31, 2003 of its outstanding Shares;
up to $1,109,112.32 of indebtedness owed by the Company to Xxxx Co-Investment Partnership, L.P.), (iii) splitwaive, combine, subdivide cancel or reclassify compromise any Shares right to receive any direct or declare, set aside for indirect payment or pay other benefit under any dividendindebtedness or other liability owing to the Company, or (iv) materially increase (or change the assumptions underlying or the methods of calculating) any bad debt, contingency, or other reserve.
(e) The Company shall not determine as collectible any accounts receivable or any portion thereof which were previously considered uncollectible, or write off as uncollectible any accounts receivable or any portion thereof.
(f) With respect to the Company Employees, the Company shall not (i) make any change in the salaries, bonuses or compensation (including perquisites) payable or to become payable to any Company Employees, other than the payment of cash bonuses on or before December 31, 2003 in the aggregate amount of up to $3,900,000 and except for changes that are regularly scheduled to occur in the normal course of business, (ii) enter into any employment agreement or make any other actual, constructive material loan to or deemed distribution in respect enter into any transaction of any Shares other nature with any Company Employees, (iii) take any action to institute any new severance or otherwise make termination pay practices with respect to any payments to stockholders in their capacity as suchCompany Employees, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan increase the benefits payable under its severance or termination pay practices, or (v) grant any increase in the pension, retirement or other employment benefits of any character of, or grant any new benefits to, any Company Employees, except as required by Law or any written agreement in effect as of the date hereof which has been disclosed to EDS.
(g) The Company shall not (i) engage in any complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise adopt a plan for any of the Company foregoing; (ii) acquire all or a substantial portion of the assets, or any of its direct the capital stock or indirect Subsidiaries other equity securities of, any other Person; or (iii) organize any subsidiary or otherwise acquire control or any ownership interest of any other than the Merger),Person.
(vh) adopt The Company shall not change any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, accounting methods used by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing it as of the date of this Agreement;the Latest Balance Sheet or its method of accounting for income and deductions for federal income tax purposes from that employed in the preparation of the consolidated federal income Tax Return including the Company for the taxable year ending December 31, 2002.
(viiii) The Company shall not (Ai) incur any indebtedness for borrowed money sell, transfer, dispose of or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or assign any of its Subsidiariesassets or properties, or (B) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business; (ii) permit any of its assets and properties to be subjected to any Liens, other than Permitted Liens; or (iii) sell, transfer, dispose of or assign any part of its operations or business to any other Person.
(j) The Company shall not (i) enter into any lease or contract for the purchase or sale of any personal property; (ii) terminate, modify, amend assign, release, relinquish or terminate waive any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director right of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Planexisting real property lease, other than in the ordinary course of business consistent with past practiceas applicable, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Electronic Data Systems Corp /De/)
Interim Operations of the Company. Except The Company covenants and agrees that, except (i) as expressly contemplated by this Agreement, or (ii) as agreed in writing by Parent, after the date hereof, and prior to the earlier of (x) the termination of this Agreement in accordance with Article VIII and (y) the Effective Time, the Company shall, and shall cause its Subsidiaries to:
(a) conduct the business, operations, activities and practices of the Company and its Subsidiaries, respectively, in the ordinary course of business consistent with past practice;
(b) use their reasonable best efforts to preserve intact its overall present business organization and maintain satisfactory relations with customers, suppliers, employees, contractors, distributors and others having business dealings with it;
(c) except for financing of VOI Receivables and draws under existing project loans as and to the extent set forth on Schedule 5.1(c) (in each such case in the ordinary course of business consistent with past practice), not incur, or assume or become subject to, whether directly, indirectly or by way of guarantee or otherwise, any indebtedness or other liability (whether fixed or contingent, liquidated or unliquidated), including purchase money indebtedness, except trade or business obligations or indebtedness incurred under existing bank credit facilities in the ordinary course of business and consistent with past practice in the aggregate not in excess of $500,000;
(d) except for (i) shares of Series 2 Preferred Stock issued as payment-in-kind dividends to holders in accordance with the terms of the Series 2 Preferred Stock outstanding as of the date hereof ("PIK Issuances") and (ii) Shares issued upon exercise of Options and warrants in accordance with their respective terms in effect as of the date hereof "Share Issuances"), not issue, sell or dispose of any capital stock or other equity interest in the Company or any of its Subsidiaries or any options, warrants or other rights to purchase any such capital stock or equity interest or any securities convertible into or exchangeable for such capital stock or equity interests or otherwise make or effect any change in the issued and outstanding capitalization of the Company and its Subsidiaries;
(e) except for PIK Issuances and Share Issuances, not (i) declare any dividend or make any distribution of any assets of any kind whatsoever to any of its stockholders (other than between the Company and its wholly owned Subsidiaries) including, without limitation, distributions in redemption of or as the purchase price for any capital stock or equity interest, or in discharge or cancellation, in whole or in part, of any indebtedness, whether in payment of principal, interest or otherwise or (ii) except as set forth on Schedule 5.15.1(e), during loan money to, make any investment in or enter into any agreement or arrangement with any affiliate thereof (except between any wholly owned Subsidiary of the period from Company and the Company or another wholly owned Subsidiary) in excess of $50,000;
(f) except for property under contract as of the date of this Agreement hereof as and to the Effective Time extent set forth on Schedule 5.1(f) and pledged receivables in the ordinary course of business consistent with past practice, not (unless Parent shall i) sell, lease, transfer, assign or otherwise agree dispose of any of its assets except for sales to consumers (including sales of VOIs) or third party distributors in writing and the ordinary course of business consistent with past practice, (ii) license, sell, transfer, pledge, modify, disclose, dispose of or permit to lapse any right under or respecting, or enter into any settlement regarding the breach or infringement of, any Intangible Property, or (iii) permit or allow any of its assets to be subject to any additional Lien (other than Permitted Liens);
(g) except as otherwise contemplated by this Agreement), for repossession of VOI property in the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.15.1(g), the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termspurchase, issuelease, sell, grant, dispose of, pledge or otherwise encumberacquire any assets or make any capital expenditures or commitments therefor involving the expenditure of more than $150,000 in the aggregate or (ii) merge or consolidate with, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), purchase all or any securities or rights convertible into, exchangeable for, or evidencing substantial part of the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu assets of, or in substitution forotherwise acquire any Person, Shares outstanding on the date hereofcorporation or firm or division thereof;
(iih) redeemexcept to the extent required by applicable Law, purchase not increase the compensation or otherwise acquire, fringe benefits payable or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends become payable by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct Subsidiaries to any of their respective directors, officers or indirect Subsidiaries (employees, other than routine increases and annual bonuses made in the Mergerordinary course of business and consistent with past practice;
(i) except to the extent required by GAAP or statutory or regulatory accounting rules or regulatory requirements pursuant to GAAP, (i) not change their respective accounting principles, methods or practices (including, without limitation, any change in depreciation or amortization policies or rates or any change in the policies pertaining to the recognition of accounts receivable or the discharge of accounts payable or accounting for inventories),, and (ii) except to the extent required by a change in applicable Law after the date hereof, not change their respective Tax accounting principles, methods or practices (including, without limitation, any change in depreciation or amortization policies or rates or any change in the policies pertaining to the recognition of accounts receivable or the discharge of accounts payable or accounting for inventories);
(j) not (i) settle or compromise any material Tax liability, (ii) agree to any adjustment of any material Tax attribute, (iii) make or change any material election with respect to Taxes (except for elections consistent with past elections), (iv) surrender any right to claim a refund of Taxes, (v) adopt consent to any amendments extension or waiver of the statute of limitation period applicable to its Certificate of Incorporation any Taxes, Tax Return or By-laws Tax Claim, (v) file any amended Tax Return, or alter through merger, liquidation, reorganization, restructuring (vi) enter into any closing agreement with the IRS or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the CompanyGovernmental Authority;
(vik) make except to the extent required by applicable Law, not pay, discharge or satisfy any acquisitionclaims or liabilities (absolute, by means of mergeraccrued or unaccrued, consolidation asserted or unasserted, contingent or fixed, liquidated or unliquidated, disputed or undisputed or otherwise, or disposition, of assets or securities (other than the Merger), in each case ) other than in the ordinary course of business consistent with past practice;
(viil) sellnot (i) amend their respective certificates of incorporation or bylaws or comparable governing instruments, leaseor (ii) split, licensecombine or reclassify their respective outstanding capital stock;
(m) except to the extent required to maintain compliance with applicable Law, mortgage or as required by a CBA, the Company and its Subsidiaries shall not (i) terminate, establish, implement, adopt, amend, enter into, make any new, or accelerate the vesting or payment of any existing grants or awards under, amend or otherwise encumber modify (other than immaterial amendments and modifications) any Plans (including the funding arrangements in respect thereof) or subject to any Lien or otherwise dispose of any of its properties or assets, except sales contractual obligations relating thereto in the ordinary course of business consistent with past practice and Liens existing effect as of the date of this Agreement or as contemplated by this Agreement, (ii) waive any debts due to the Company from any officer or director of the Company, (iii) otherwise take any action that would reasonably be expected to materially increase any funding liability with respect to any Plan, or (iv) exercise any discretion or authority under the terms of any Plan or contractual obligation in any manner that would result in an acceleration or material increase or modification of the rights of or payments or benefits to any employee, director or consultant;
(viiin) not (Ai) incur except as set forth on Schedule 5.1(n), modify in any indebtedness for borrowed money material respect, amend in any material respect or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or terminate any of its Subsidiaries, Material Contracts or (Bii) make any loans or advances, other than in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims, other than (in the case of both clauses (i) and (ii)) such modifications, amendments, terminations, waivers, releases or assignments as are in the ordinary course consistent with past practice and which, individually or in the aggregate, are not material to the Company and its Subsidiaries taken as a whole;
(xiiio) except as required to comply with applicable law, (A) adopt, not enter into, terminate into any agreement containing any provision or amend covenant limiting in any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director respect the ability of the Company or any of its Subsidiaries or affiliates (collectivelyor, "Benefit Plans")giving effect to the Merger, Parent or any of its Subsidiaries or affiliates) to (i) sell or buy any products or services to or from any other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practicePerson, (Bii) increase engage in any manner the compensation or fringe benefits ofline of business, or pay (iii) compete with any bonus to, any director, officer or employee Person;
(except for normal increases or bonuses in the ordinary course of business consistent with past practice), (Cp) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund for its winding up, liquidation, dissolution or in reorganization or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of all or any other way secure the payment of compensation its assets or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; orrevenues;
(xivq) not terminate, negotiate, renegotiate, adopt, amend or enter into any CBA; and
(Ar) take, or agree not enter into any agreement or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation which would, if taken on or warranty from being inaccurate before the Closing Date, result in any material respect at a breach of the Effective Time (except for representations and warranties which speak as of a particular dateforegoing covenants contained in this Section 5.1, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, make any of the conditions representations or warranties of the Merger set forth Company contained in Article VI not being satisfied except that, with respect to this Agreement untrue or incorrect as of the Closing Date such that the condition set forth in Section 6.1(a), such action shall 7.2(b) would not reasonably be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors expected to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoingbe satisfied, or enter into any contract, agreement, commitment prevent the Company from performing or arrangement cause the Company not to do any of the foregoingperform its covenants hereunder.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from (a) From the date of this Agreement hereof to the Effective Time (unless Parent Closing, Sellers shall otherwise agree in writing and except as otherwise contemplated by this Agreement), cause the Company will and the Subsidiaries to conduct its operations according to its their respective businesses only in the ordinary and usual course of business consistent with past practice practices and seek pay or cause to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that be paid their goodwill and ongoing businesses shall be unimpaired respective obligations in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and a timely fashion in accordance with their present termsrespective terms and neither the Company nor any Subsidiary shall, issueunless Buyer gives its prior written approval (which approval shall not be unreasonably withheld, sellconditioned or delayed), grant, dispose of, pledge (i) amend or otherwise encumberchange its articles or certificate of incorporation or by-laws, as each such document is in effect on the date hereof, (ii) issue or sell, or authorize for issuance or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or issue, grant or enter into any securities subscription, option, warrant, right, convertible security or rights convertible intoother agreement or commitment of any character obligating the Company or the Subsidiaries to issue securities, exchangeable for(iii) in the case of the Company, declare, set aside, make or evidencing the right pay any dividend or other distribution with respect to subscribe forits capital stock, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiv) redeem, purchase or otherwise acquire, directly or propose to redeem, purchase or otherwise acquireindirectly, any of its outstanding Shares;
capital stock, (iiiv) splitauthorize any capital expenditure in excess of $50,000 (other than the capital expenditures described on SCHEDULE 4.07(C) attached hereto, combinewhich Buyer hereby consents to) or sell, subdivide pledge, dispose of or reclassify any Shares or declare, set aside for payment or pay any dividendencumber, or make agree to sell, pledge, dispose of or encumber, any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization assets of the Company or the Subsidiaries, except for sales of assets in the ordinary course of business and sales of surplus or non-essential assets disposed of for fair market value in the ordinary course of the Company's operations consistent with past practices, (vi) acquire (by merger, share exchange, consolidation, acquisition of stock or assets, or otherwise) any corporation, partnership or other business organization or division thereof or enter into any contract, agreement, commitment or arrangement with respect to any of its direct or indirect Subsidiaries the foregoing, (vii) incur any indebtedness for borrowed money (other than pursuant to credit, loan or other financing agreements or arrangements as in effect on the Mergerdate hereof),
, issue any debt securities or enter into or modify any contract, agreement, commitment or arrangement with respect thereto, (vviii) adopt enter into, amend or terminate any amendments to its Certificate employment or consulting agreement with any director, officer, consultant or key employee of Incorporation the Company or By-laws the Subsidiaries, enter into, amend or alter through merger, liquidation, reorganization, restructuring or in terminate any employment agreement with any other fashion person otherwise than in the corporate structure ordinary course of business or ownership take any action with respect to the grant or payment of any direct severance or indirect Subsidiary termination pay, other than pursuant to policies or agreements of the Company;
Company or the Subsidiaries in effect on the date hereof or as contemplated by Section 6.19, (viix) enter into, extend or renew any lease for office or manufacturing space, (x) except as required by law, adopt, amend or terminate any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any officer or employee of the Company or the Subsidiaries or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity, (xi) grant any increase in compensation, or grant or make any acquisitionbonus or other compensatory payments, by means to any director, officer, consultant or key employee of mergerthe Company or the Subsidiaries, consolidation or otherwiseexcept (A) pursuant to agreements entered into prior to August 9, or disposition2001, of assets or securities (other than the Merger), in each case other than B) in the ordinary course of business consistent with past practice;
practices, or (viiC) sellas contemplated by Section 6.19, lease, license, mortgage or otherwise encumber or subject (xii) grant any increase in compensation to any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities employee of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than the Subsidiaries except in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ixxiii) make or agree change any election relating to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;Taxes.
(xb) make any From the date hereof to the Closing, Sellers shall cause the Company and the Subsidiaries to use their commercially reasonable efforts to preserve intact the business organization of the Company and the Subsidiaries, to keep available in all material tax election or settle or compromise any material income tax liability;
(xi) payrespects the services of their present officers, dischargeconsultants and key employees, settle or satisfy any claimsto preserve intact their banking relationships and credit facilities, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance to preserve intact their relationships with their termscustomers, suppliers and distributors, to preserve the goodwill of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of those having business consistent relationships with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required them and to comply with all applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoinglaws.
Appears in 1 contract
Interim Operations of the Company. Except as set forth on Schedule 5.1, during During the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree Time, except as consented to in writing and except in advance by Parent, as required by any applicable Legal Requirement or as otherwise contemplated expressly permitted by this Agreement), the Company will conduct shall, and shall cause each of the other Acquired Entities to, (x) in all material respects carry on its operations according to its business in the ordinary and usual course of business consistent with past practice practice, and seek (y) use commercially reasonable efforts to preserve intact its current business, assets and properties and its present relationships with customers, suppliers, lenders, creditors, landlords and other persons with which it has business organizationrelations or dealings, and to keep available the services of its current officers and the employees in Total Compensation Group 1, 2, 3 or 4, in each case as set forth in this clause (y) in all material respects in the ordinary course of business consistent with past practice. In addition to and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries toagrees that, prior to the Effective Time, without except (i) to the prior written extent Parent or Merger Sub shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) as set forth in Section 4.1 of Parentthe Company Disclosure Schedule, (iii) as expressly contemplated or required by this Agreement or (iv) to the extent required by any Legal Requirement, the Company shall not, and shall cause each of the other Acquired Entities not to:
(ia) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present termsamend, issueadopt, sellmodify, grant, dispose of, pledge or otherwise encumber, or authorize waive or propose the issuance, sale, disposition any change to its certificate of incorporation or pledge bylaws or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereofequivalent organizational documents;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iiib) split, combine, subdivide or reclassify any Shares shares of its capital stock or other equity interests;
(c) declare, set aside for payment or pay any dividenddividend or distribution (whether payable in cash, stock or property) with respect to any shares of its capital stock or other equity interests (except for dividends by a wholly owned Subsidiary to its direct parent), or make enter into any agreement with respect to the voting of its capital stock other equity interests;
(d) merge or consolidate with any other actualPerson or restructure, constructive reorganize, recapitalize, dissolve or deemed distribution in respect of completely or partially liquidate the Company or any Shares other Acquired Entity, or otherwise make enter into any payments to stockholders in their capacity as suchagreements or arrangements imposing material changes or restrictions on its assets, operations or businesses, other than dividends by a direct or indirect among wholly owned Subsidiaries;
(e) form any Subsidiary other than in the ordinary course of business;
(f) commit to acquiring any equity interest in any other Entity for which the fair market value of the Company,total consideration payable by the Company and the other Acquired Entities would exceed $25 million individually or, when combined with any actions permitted by Section 4.1(g) or (o), the aggregate amount of such commitments would exceed $225 million in any calendar quarter;
(ivg) adopt a plan of complete or partial liquidation, dissolution, commit to acquiring (whether pursuant to merger, consolidationstock or asset purchase or otherwise) any business enterprise or assets from any other Person with a value or purchase price that would exceed $25 million individually or, restructuringwhen combined with any actions permitted by Section 4.1(f) or (o), recapitalization the aggregate amount of such commitments would exceed $225 million in any calendar quarter;
(h) issue, sell, grant, pledge, dispose of, transfer or encumber, or authorize the issuance, sale, grant, pledge, disposition, transfer or encumbrance of, any additional shares of, or securities convertible or exchangeable for, or Company RSUs, options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or other reorganization equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other equity interests of the Company or any other Acquired Entity on a deferred basis or other rights linked to the value of its direct shares of capital stock or indirect Subsidiaries other equity interests, other than (i) the issuance of shares of Company Common Stock issuable upon the settlement of Company RSUs outstanding as of the date hereof or (ii) the grant of Company RSUs to employees on a quarterly basis, in the ordinary course of business and consistent with past practice or as otherwise expressly provided in Section 4.1(h) of the Company Disclosure Schedule; provided, that in no event shall any such grant of Company RSUs be subject to accelerated vesting on, in connection with, or following the Closing except as provided in Section 4.1(h) of the Company Disclosure Schedule;
(i) transfer, lease, license, sell, mortgage, pledge, allow to lapse or expire (except for the expiration of a stated term or a termination at the expiration of a stated term), dispose of, abandon, fail to maintain or encumber (other than Permitted Liens) any material assets, rights or properties, other than: (i) sales of title to physical assets in the Mergerordinary course of business consistent with past practice if the proceeds of any such sale do not exceed $10 million, (ii) sales of dark fiber indefeasible rights of use in the ordinary course of business consistent with past practice if the upfront payment in respect of any such sale does not exceed $10 million, (iii) as security for any borrowings that are not prohibited by Section 4.1(k),
, (iv) the transfer or sublease of real property involving an asset value not exceeding $1 million, (v) adopt dispositions and management of obsolete assets, rights or properties no longer used in the operation of the businesses of the Company and its Subsidiaries or (vi) other than sales covered by (ii) above, the transfer, lease, license or sale, in the ordinary course of business consistent with past practice, of connectivity, colocation/data center, cloud and security services, including but not limited to internet and IP services, transport services, mobile infrastructure services, Ethernet services, private dedicated network services, disaster recovery and cyber security services;
(j) repurchase, redeem or otherwise acquire any amendments to shares of its Certificate of Incorporation capital stock or By-laws or alter through mergerother equity interests, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary except shares of the Company’s capital stock repurchased from employees or former employees of any of the Acquired Entities as required pursuant to existing contractual relationships with holders of Company RSUs in effect as of the date of this Agreement;
(vik) make incur, create, assume, guarantee or otherwise become liable for any acquisitionIndebtedness, except for: (i) short-term borrowings incurred in the ordinary course of business consistent with past practice, (ii) revolving borrowings incurred pursuant to the Credit Agreement and (iii) any guarantees contemplated by means the Credit Agreement or the Company Notes or any Indebtedness permitted thereunder;
(l) incur, create, assume, guarantee or otherwise become liable for any capital lease, except for capital leases incurred in the ordinary course of mergerbusiness consistent with past practice that do not exceed $4 million individually and $20 million in the aggregate, consolidation but excluding capital leases in respect of any renewals or otherwise, or disposition, replacements of assets or securities (other than existing capital leases that are required to operate the Merger), in each case other than business in the ordinary course of business consistent with past practice;
(viim) sell, lease, license, mortgage or otherwise encumber or subject except to the extent required by any Lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as Company Plan set forth on Section 2.13(a) of the date of this Agreement;
(viii) (A) incur Company Disclosure Schedule, as required by applicable Legal Requirements or any indebtedness for borrowed money agreement or guarantee arrangement with any such indebtedness of another personunion, or issue or sell any debt securities or warrants works council or other rights to acquire any debt securities body that represents employees of the Company or any Subsidiary, or as expressly permitted pursuant to Section 4.1(h)(ii) (i) establish, adopt, enter into, terminate, or amend any Company Plan (or any agreement, program, policy or plan that would be a Company Plan if it were in existence on the date hereof) (other than to conduct its annual renewal and reenrollment of its Subsidiaries, or (B) make any loans or advances, other than health and welfare plans in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than with such changes that do not substantially increase the cost of providing benefits thereunder to the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against inSubsidiary, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of approve performance metrics under its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any quarterly bonus to, any director, officer or employee (except for normal increases or bonuses plans in the ordinary course of business consistent with past practice), (Cii) pay hire or terminate (other than for cause) any benefit not provided for under employee of the Company who holds or would hold a position in Total Compensation Group 1, 2, 3 or 4, (iii) increase the compensation or benefits of, or enter into any Benefit Plannew bonus or incentive agreement or arrangement with, any current or former employees, directors, officers or consultants, other than (x) in the ordinary course of business consistent with past practice with respect to employees who are not employees who hold a position in Total Compensation Group 1, 2, 3 or 4 or (y) to approve the payment of, and take action to pay, quarterly bonuses, in each case, in the ordinary course of business consistent with past practice, (Div) other than as expressly contemplated in Section 1.9(a), take any action to accelerate the vesting or payment, or the funding of any payment or benefit under, any amount under any Company Plan, (v) grant or changes the terms of any severance or termination pay to any current or former director, officer, employee, or individual consultant of the Company or any of its Subsidiaries, or (vi) loan or advance money or other property to any current or former director, officer, employee or individual consultant of the Company or any of its Subsidiaries;
(n) conduct any plant closing or mass layoff defined under the Worker Adjustment and Retraining Notification Act of 1988, as amended or any similar foreign, state or local law requiring notice to employees in the event of a plant closing or mass layoff;
(o) commit to entering into any capital expenditure project (including, without limitation, with respect to a sales order for the building of infrastructure) that would require in excess of (i) $15 million in gross capital expenditures (but only if the payback period determined with respect to the scheduled payments which would be due from the committed counterparty with respect to such capital expenditure project (including with respect to a sales order for the building of infrastructure) would exceed 10 years) or (ii) $25 million in gross capital expenditures; provided, that the Company shall provide Parent written notice of any such capital expenditure project; provided, further, that the Company and its Subsidiaries will not make any such commitments if, when combined with any actions permitted by Section 4.1(f) or (g), the aggregate amount of such commitments would exceed $225 million in any calendar quarter;
(p) incur in excess of $900 million in the aggregate during any four fiscal quarter period commencing with the four fiscal period ending June 30, 2019 with respect to the following matters: (i) the acquisition of any equity interest in any other Entity, (ii) the acquisition (whether pursuant to merger, stock or asset purchase or otherwise) of any business enterprise or assets from any other Person and (iii) capital expenditures;
(q) change any of its methods of accounting or accounting practices in any material respect, except as permitted may be required by applicable Legal Requirements or GAAP;
(r) make, change, or revoke any material Tax election, except for elections made in clause the ordinary course of business or consistent with the past practices of the Acquired Entities, change any accounting period or method with respect to Taxes, file any amended Company Return, settle or compromise any proceeding with respect to any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Taxes, enter into any closing agreement with respect to any Tax, surrender any right to claim a material Tax refund or take any other similar action relating to the filing or the payment of any Tax;
(s) settle, compromise or discharge any Legal Proceeding against the Company or any other Acquired Entity, other than Legal Proceedings where the amount paid in settlement, compromise or discharge does not exceed $5,000,000 individually or $20,000,000 in the aggregate, or which would have a material effect on the continuing operations of the Acquired Entities, taken as a whole or would reasonably expected to prevent the consummation of the Merger;
(t) fail to use commercially reasonable efforts to maintain compliance with material Governmental Authorizations or otherwise maintain their validity and full force and effect;
(u) recognize any union, works council or other labor organization as the representative of any of the employees of the Company or any of the Subsidiaries, or enter into any collective bargaining agreement or other material agreement with a labor union, works council or similar organization or employee representative body, or waive or amend in any material respect, any similar existing Contract with a labor union, works council or similar organization or employee representative body, in each case except as required by applicable Legal Requirements or as required by any labor Contract in effect as of the date hereof;
(v) amend, modify, terminate or cancel a material insurance policy (or reinsurance policy) or self-insurance program of the Company or any other Acquired Entity in effect as of the date hereof, which are not replaced by comparable insurance policies;
(w) modify any Privacy Policies or operations of their IT Assets in any manner that is materially adverse to the business of the Company or its Subsidiaries, taken as a whole, except as required to comply with applicable Legal Requirements;
(x) enter into any new material line of business outside the businesses being conducted by the Acquired Entities on the date of this Agreement;
(y) make any material loan, advance or capital contribution to, or investment in, any other Person, other than (A) loans, advances or capital contributions to, or investments in, Subsidiaries of the Company consistent with the Company’s proportional ownership in such Subsidiaries, (B) above, or advances to employees of the Acquired Entities for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than expenses incurred in the ordinary course of business consistent with past practice, take any action (C) extensions of credit to fund customers incurred in the ordinary course of business consistent with past practice or in any other way secure the payment of compensation (D) investments permitted under Section 4.1(f) or benefits under any employee plan, agreement, contract or arrangement or Benefit PlanSection 4.1(g); or
(xivz) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of enter into a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, Contract to take any action necessary to prevent any such representation or warranty from being inaccurate of the actions described in any material respect at the Effective Time clauses “(except for representations and warranties which speak as a)” through “(y)” of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) takethis Section 4.1, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do authorize any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Zayo Group LLC)
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise expressly contemplated by this Agreement, except as required by applicable Law, except as set forth in the Disclosure Schedule (including Section 5.1 thereof), and except as may be consented to in writing by Purchaser (which consent shall not be unreasonably withheld or delayed), after the date hereof and prior to the Closing Date:
(a) the business of the Company shall be conducted in a manner consistent with past practice and in the ordinary and usual course;
(b) Seller will use, and will cause the Company to use, its commercially reasonable efforts to preserve the business organization of the Company intact, to preserve the goodwill of suppliers, customers, independent contractors and others having business dealings with the Company and to keep available the services of the present officers, employees and consultants of the Company;
(c) the Company shall not amend its certificate of incorporation or by-laws;
(d) the Company shall not (i) issue, sell, transfer, pledge, dispose of or encumber any shares of any class or series of its capital stock or other equity or ownership interests, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock or other equity or ownership interests, (ii) declare, set aside or pay any dividend or any other distribution payable in cash, stock or other equity or ownership interests, or property with respect to any shares of any class or series of its capital stock or other equity or ownership interests, (iii) split, combine or reclassify any shares of any class or series of its stock or other equity or ownership interests, or (iv) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock or other equity or ownership interests, or any instrument or security which consists of or includes a right to acquire such shares or other equity or ownership interests;
(e) except as may be required by applicable Law or under any existing agreement, the Company will conduct shall not: (i) increase the compensation or benefits payable or to become payable to or grant any bonuses, salary increase, severance pay or retention pay to any of its operations according officers, directors, employees, agents or consultants; (ii) enter into or amend any Company Employee Plan; (iii) hire any employee, agent or consultant; (iv) make or amend any loans to any of its officers, directors, employees, affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any such Person pursuant to any Company Employee Plan or otherwise; or (v) discharge any officer, key employee or key consultant of the Company without cause, or engage in any employee layoffs, plant closures or reductions in force without first providing notices and complying with any other applicable requirements of the WARN Act or any similar applicable Law; provided, however, that notwithstanding the foregoing, the Company may (A) make employee advances in the ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or practice; (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on hire new employees for non management positions for the date hereof;purposes of Company Business; and (C) hire new consultants for the purposes of Company Business.
(iif) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) Company shall not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other corporate reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vig) make the Company shall not change any acquisitionof the accounting methods used by it unless required by GAAP or applicable Law;
(h) the Company shall not become legally committed to any new capital expenditure requiring expenditures in excess of $100,000, by means except for committed expenditures;
(i) except for licenses granted or obtained in the ordinary course of mergerbusiness and consistent with past practices, consolidation the Company shall not transfer, sell, lease, license, mortgage or otherwise, or disposition, create an Encumbrance (other than a Permitted Encumbrance) upon any of its assets or securities properties (other than the Merger)disposition of immaterial assets consistent with past practice) or license, in each case sell, transfer, pledge, modify, dispose of or permit to lapse any right under or respecting, or enter into any settlement regarding the breach or infringement of, any Company Intellectual Property Rights or disclose any Company Intellectual Property Rights (other than Patent Rights, Trademark Rights and Copyrights and other than Confidential Information disclosed pursuant to confidentiality agreements entered into by the Company in the ordinary course of business consistent with past practice);
(j) the Company shall not make any loans or advances to any Person other than in the ordinary course of business and consistent with past practice;
(k) the Company will continue its advertising and promotional activities and pricing and purchasing policies, in the ordinary course of business consistent with past practice;
(viil) sellthe Company will not incur, leaseor assume or become subject to, licensewhether directly or by way of guarantee or otherwise, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assetsIndebtedness, including purchase money indebtedness, except sales trade or business obligations incurred in the ordinary course of business consistent with past practice and Liens existing as in the aggregate not in excess of the date of this Agreement$100,000;
(viiim) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personthe Company will not purchase, lease, or issue or sell any debt securities or warrants or other rights to otherwise acquire any debt securities assets involving the expenditure of more than $50,000 individually and $100,000 in the Company or any of its Subsidiaries, or (B) make any loans or advancesaggregate, other than purchases of inventory for redemption awards in the ordinary course of business and consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (En) other than in the ordinary course of business consistent with past practice, take the Company will not (i) enter into any action contract that would have been a Material Contract had it have been entered into prior to fund or the date of this Agreement, (ii) modify in any other way secure the payment of compensation or benefits under any employee planmaterial respect, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate amend in any material respect at the Effective Time or terminate any of its Material Contracts, or (except for representations and warranties which speak as of a particular dateiii) waive, which need be accurate only as of such date), provided however that release or assign any material rights or claims;
(o) the Company shall be permitted to take not adopt or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, change any action that would result in, or is reasonably likely to result in, any method of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; orTax accounting;
(xvp) authorize, recommend, propose or announce an intention to do any of the foregoing, or Company shall not enter into any contract or transaction with Seller or any of its Affiliates;
(q) the Company shall not make any payments to any Affiliates other than pursuant to existing contracts; and
(r) the Company shall not enter into any agreement, contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. (a) Except as set forth on Schedule 5.1, during the period from the ------------ date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to will preserve intact its current business organization, use its best efforts to keep available the services of its current officers and officers, employees and consultants and use its best efforts to preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. .
(b) Without limiting the generality of the foregoingforegoing clause (a), and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement (other than exercise of Options whereby payment of the exercise price is made in the form of a note, which will not be accepted by the Company without the prior consent of Parent, such consent not to be unreasonably withheld) or as set forth on Schedule 3.2 and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the CompanyCompany to the Company or one of its other Subsidiaries,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate certificate of Incorporation incorporation or By-by- laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business consistent with past practice and Liens liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than to officers, employees and consultants, in the ordinary course of business consistent with past practice, or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess an aggregate of $600,000300,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports Reports, the December Financial Information or incurred since December 31, 2000 in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, employment, consulting, salary continuation, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, of any director, officer officer, employee or employee consultant (except for normal increases or bonuses to non-officers and non- directors in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any equity-based awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or ), (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; orPlan or (F) alter the composition of the Board of Directors (except as contemplated in Section 1.3 hereof) or change the title of, hire, terminate the employment of, modify the job description or duties of, or waive any material right under any employment or consulting agreement with, any senior management, consultant or employee whose annual compensation rate exceeds $60,000 (other than in the ordinary course of business and consistent with past practice);
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided provided, however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law;
(xv) allow any insurance policy naming the Company or any of its Subsidiaries as beneficiary or loss payee to be cancelled or terminated, other than in the ordinary course;
(xvi) settle or compromise any pending or threatened litigation involving the Company or any of its Subsidiaries; or
(xvxvii) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Interim Operations of the Company. Except During the period from the date of this Agreement to the Closing date, except with Purchaser's prior specific written consent or as set forth on Schedule 5.1expressly contemplated by this Agreement, the Seller shall, and the Executive and the Stockholder shall cause the Seller to operate its business only in the ordinary and usual course and to preserve intact its business organization and good will in all respects. Additionally, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement)Closing date, the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses Seller shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will the Executive and the Stockholder shall cause the Seller not permit to, do any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:following (unless expressly permitted in writing by Purchaser):
(i) except for the issuance amend its Certificate of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, Incorporation or By-Laws; (ii) issue, sell, grant, dispose of, pledge or otherwise encumber, sell or authorize for issuance or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class of its securities (including the Shares)including, but not limited to, by way of stock split or dividend) or any securities or rights convertible intosubscriptions, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rightsoptions, warrants, optionsrights or convertible securities, calls, or enter into any agreements or commitments or any other agreements of any character obligating it to purchase issue or acquire sell any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or such securities; (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(iiiii) redeem, purchase or otherwise acquire, directly or propose indirectly, any shares of its capital stock or any option, warrant or other right to redeem, purchase or otherwise acquire, acquire any of its outstanding Shares;
such shares; (iiiiv) split, combine, subdivide or reclassify any Shares or declare, set aside for payment declare or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization dividend or other reorganization of the Company distribution (whether in cash, stock or any of other property) with respect to its direct or indirect Subsidiaries (other than the Merger),
capital stock; (v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than in the ordinary course of business consistent with past practice;
(vii) voluntarily sell, leasetransfer, licensesurrender, mortgage abandon or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties assets or assets, except sales in the ordinary course of business consistent with past practice and Liens existing as of the date of this Agreement;
property rights (viii) (A) incur any indebtedness for borrowed money tangible or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advancesintangible), other than in the ordinary course of business consistent with past practice, business; (vi) grant or any capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company;
(ix) make or agree to make any new capital expenditure mortgage or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election pledge or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, subject itself or any of its Subsidiaries is a party;
properties or assets to any lien, charge or encumbrance of any kind, except liens for taxes not currently due; (xiivii) create, incur or assume any liability or indebtedness, except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.82
Appears in 1 contract
Interim Operations of the Company. Except The Company covenants and agrees that, except (i) as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree expressly provided in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent or (ii) with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
, after the date hereof and prior to the Effective Time: (a) the business of the Company shall be conducted only in the ordinary and customary course consistent with past practice, and the Company shall use its best efforts to preserve its business organization intact and maintain its existing relations with customers, suppliers, employees, creditors and business partners; (b) the Company will not, directly or indirectly, split, combine or reclassify the outstanding Company Common Stock or Company Preferred Stock; (c) the Company shall not: (i) except for the issuance amend its articles of Shares upon the exercise of Options outstanding on the date of this Agreement and incorporation or by-laws,(ii) declare, set aside or pay any dividend or other distribution payable in accordance cash, stock or property with their present termsrespect to its capital stock, (iii) issue, sell, granttransfer, pledge, dispose of or encumber any additional shares of, pledge or otherwise encumbersecurities convertible into or exchangeable for, or authorize options (except options issued to newly hired employees consistent with past practice), warrants, calls, commitments or propose the issuancerights of any kind to acquire, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including of the Shares)Company, or any securities or rights convertible into, exchangeable for, or evidencing other than issuances pursuant to the right to subscribe for any shares exercise of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares Company Options outstanding on the date hereof;
, (iiiv) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any material assets other than in the ordinary and usual course of business and consistent with past practice, or (v) redeem, purchase or otherwise acquire, acquire directly or propose to redeem, purchase or otherwise acquire, indirectly any of its outstanding Shares;
capital stock; (iiid) splitthe Company shall not modify, combine, subdivide amend or reclassify terminate any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company Agreements or waive, release or assign any of its direct material rights or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through mergerclaims, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than except in the ordinary course of business and consistent with past practice;
; (viie) sell, lease, license, mortgage the Company shall not permit any material insurance policy naming it as a beneficiary or otherwise encumber a loss payable payee to be canceled or subject terminated without notice to any Lien or otherwise dispose of any of its properties or assetsParent, except sales in the ordinary course of business and consistent with past practice and Liens existing as of practice; (f) the date of this Agreement;
Company shall not: (viii) (Ai) incur or assume any indebtedness long-term debt, except for borrowed money or guarantee any such indebtedness amounts not in excess of another person$50,000 in the aggregate, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than except in the ordinary course of business consistent with past practice, incur or assume any short-term indebtedness in amounts not consistent with past practice, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except in the ordinary course of business and consistent with past practice, (iii) make any loans, advances or capital contributions to, or investments in, any other person, Person (other than the Company customary loans or advances to employees in accordance with past practice), or (iv) except as specifically contemplated herein, enter into any direct material commitment or indirect wholly owned Subsidiary of the Company;
transaction (ix) make or agree to make including, but not limited to, any new borrowing, capital expenditure or purchase, sale or lease of assets) and other than capital expenditures which, individually, is in excess of pursuant to the Company's capital expenditures budget previously delivered to Parent and other capital expenditures that do not exceed $100,000 or, 25,000 in the aggregateaggregate since June 30, are in excess 1998; (g) the Company shall not: (i) change any of $600,000;
the accounting principles used by it unless required by GAAP, or (xii) make take or knowingly allow to be taken any material tax election or settle or compromise any material income tax liability;
action which would jeopardize qualification of the Millennium Merger as a nonrecognition transfer under the Code; (xih) the Company shall not pay, discharge, settle discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, dischargedischarge or satisfaction of any such claims, settlement liabilities or satisfaction, obligations (x) in the ordinary course of business and consistent with past practice practice, or in accordance with their termsclaims, of liabilities or obligations reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included of the Company, or (y) which are legally required to be paid, discharged or satisfied (provided that if such claims, liabilities or obligations referred to in this clause (y) are legally required to be paid and are also not otherwise payable in accordance with clause (x) above, the Company will notify Parent in writing if such claims, liabilities or obligations exceed, individually or in the aggregate, $50,000 in value, reasonably in advance of their payment); (i) the Company SEC Reports shall not adopt a plan of complete or incurred in partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the ordinary course of business consistent with past practice, or waive any benefits ofCompany (other than the Millennium Merger); (j) the Company shall not take, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modify, amend or terminate any contract or agreement to which the Company or any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended in the ordinary course of business consistent with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty of the Company hereunder contained herein inaccurate at in any respect at, or as of any time prior to, the Effective Time Time; (except k) the Company shall not voluntarily make or agree to make any changes in Tax accounting methods or any material Tax election, waive or consent to the extension of any statute of limitations with respect to Taxes, or consent to any assessment of Taxes, or settle or compromise any Audit; and (l) the Company shall not (i) make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants (other than general increases in wages to employees who are not officers or directors or affiliates in the ordinary course consistent with past practice, as disclosed in Section 3.8 of the Company Disclosure Schedule), or to persons providing management services; (ii) enter into or amend any employment, severance, consulting, termination or other agreement or employee benefit plan; or (iii) make any loans to any of its officers, directors, employees, affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for representations and warranties which speak as or on behalf of a particular date, which need be accurate only as any of such date)persons, whether pursuant to an employee benefit plan or otherwise; (Bm) omitexcept as specifically described on Schedule 5.1(m) of the Company Disclosure Schedule, the Company shall not (i) pay or agree to pay or make any accrual or arrangement for payment of any severance, pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or affiliate except in the ordinary course of business consistent with past practice; (ii) pay or agree to pay or make any accrual or arrangement for payment to any officers, directors, employees or affiliates of the Company of any amount relating to unused vacation days, except payments and accruals made in the ordinary course consistent with past practice; (iii) adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or agree any employment or commit to omitconsulting agreement with or for the benefit of any director, to take any action necessary to prevent any such representation officer, employee, agent or warranty from being inaccurate consultant, whether past or present; or (iv) amend in any material respect at any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing; (n) From and after the date hereof, the Company shall not effectuate (i) a "plant closing" (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment of the Company, or (ii) a "mass layoff" (as defined in the WARN Act) affecting any site of employment of the Company, without complying fully with any and all notice obligations (and/or pay and benefits in lieu of notice) under the WARN Act or any similar obligation under applicable state or local law requiring notice (and/or pay and benefits in lieu of notice) to employees in the event of a plant closing or layoff. For purposes of the WARN Act and this Agreement, the Effective Time of the Mergers is and shall be the same as the "effective date" within the meaning of the WARN Act; and (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that o) the Company shall be permitted not enter into an agreement, contract, commitment or arrangement to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, do any of the conditions of the Merger set forth in Article VI not being satisfied except thatforegoing, with respect or to the condition set forth in Section 6.1(a), such action shall be permitted if it is consistent with the fiduciary duties of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Zitel Corp)
Interim Operations of the Company. Except Prior to the Closing Date or the earlier termination of this Agreement, except as set forth on Schedule 5.17.1 or as specified in this Agreement, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree Buyer has previously consented in writing and except as otherwise contemplated by this Agreement)thereto, the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses Stockholders shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, not permit the Company will not, and will not permit any of its Subsidiaries or Subsidiary to, prior to the Effective Time, without the prior written consent of Parent:
(ia) acquire, or dispose of, any material property or assets, mortgage or encumber any property or assets other than by means of Permitted Liens or cancel any debts owed to or claims held by the Company, except for the issuance sale of Shares upon the exercise of Options outstanding on the date of this Agreement inventory and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its direct or indirect Subsidiaries (other than the Merger),
(v) adopt any amendments to its Certificate of Incorporation or By-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any direct or indirect Subsidiary of the Company;
(vi) make any acquisition, by means of merger, consolidation or otherwise, or disposition, of assets or securities (other than the Merger), in each case other than application equipment in the ordinary course of business consistent with past practice;
(viib) sellenter into, leaseamend, licenseterminate, mortgage settle or otherwise encumber compromise any agreements, commitments or subject to any Lien or otherwise dispose of any of its properties or assetscontracts, except sales in the ordinary course of business consistent with past practice agreements, commitments or contracts that are not Material Contracts and Liens existing as of the date of this Agreement;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or (B) make any loans or advances, other than that are made in the ordinary course of business consistent with past practice;
(c) engage in any transactions with, or enter into any capital contributions to, contracts or investments inagreements with, any other person, other than the Company or any direct or indirect wholly owned Subsidiary Affiliates of the Company, except to the extent required by Law or any existing agreements;
(ixd) make or agree to make any new capital expenditure or expenditures whichenter into, individually, is in excess of $100,000 or, in the aggregate, are in excess of $600,000;
(x) make any material tax election or settle or compromise any material income tax liability;
(xi) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Reports or incurred in the ordinary course of business consistent with past practice, or waive any benefits of, or agree to modify in any respect, any confidentiality, standstill or similar agreements to which the Company, or any of its Subsidiaries is a party;
(xii) except in the ordinary course of business, modifyadopt, amend or terminate any contract agreement relating to the compensation or agreement to which the Company or severance of any of its Subsidiaries is a party, or waive, release or assign any rights or claims;
(xiii) except as required to comply with applicable law, (A) adopt, enter into, terminate or amend any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director employee of the Company or increase the amount of compensation to any employee, consultant or director, except to the extent required by Law or any existing agreements;
(e) make any material change to its accounting (including tax accounting) methods, principles or practices, except as may be required by GAAP;
(f) make any amendment to its certificate of incorporation or bylaws;
(g) declare or pay any dividends or distributions or repurchase any shares of capital stock;
(h) issue or sell any capital stock or options, warrants, calls, subscriptions or other rights to purchase any capital stock of the Company or Subsidiary or split, combine or subdivide the capital stock of the Company or Subsidiary, including the issuance of shares of Common Stock upon the exercise of Warrants or Options currently outstanding;
(i) except as set forth on Schedule 7.1, make any capital expenditures exceeding $50,000 in the aggregate;
(j) purchase any new or change any existing insurance policies; or
(k) agree to take any of the actions described in sub-clauses (a) through (j) above. In addition, except as otherwise described in this Agreement, from the date of this Agreement until the Closing Date, the Stockholders shall cause each of the Company and Subsidiary to conduct its Subsidiaries (collectively, "Benefit Plans"), other than arrangements or understandings adopted, entered into, terminated or amended business in the usual and ordinary course of business consistent in accordance with past practice, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses in the ordinary course of business consistent with past practice), (C) pay any benefit not provided for under any Benefit Plan, other than in the ordinary course of business consistent with past practice, (D) except as permitted in clause (B) above, or for options included in the representation set forth in Section 3.2, grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant maintenance of stock optionsinventory levels, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder) or (E) other than in the ordinary course of business consistent with past practice, take any action to fund or in any other way secure the payment of compensation or benefits under any employee planaccounts payable and compliance with the Company's warranty policies, agreement, contract or arrangement or Benefit Plan; or
(xiv) (A) take, or agree or commit to take, any action that would make any representation or warranty and the Stockholders shall cause each of the Company hereunder inaccurate at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), (B) omit, or agree or commit Subsidiary to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at the Effective Time (except for representations and warranties which speak as of a particular date, which need be accurate only as of such date), provided however that the Company shall be permitted to take or omit to take such action which can be cured, and in fact is cured, at or prior to the Effective Time or (C) take, or agree or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions of the Merger set forth in Article VI not being satisfied except that, with respect to the condition set forth in Section 6.1(a), such action shall be permitted if it is use commercially reasonable efforts consistent with the fiduciary duties Company's current business practices, to preserve the goodwill of the Company's Board of Directors to the Company's stockholders under applicable law; or
(xv) authorize, recommend, propose or announce an intention to do any businesses of the foregoingCompany and Subsidiary, or enter into any contractincluding to preserve its current relationships with customers, agreementsuppliers, commitment or arrangement to do any of the foregoingagents and employees.
Appears in 1 contract
