Interim Operations. The Company covenants and agrees that, after the date hereof and prior to the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not: (a) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments; (b) merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate; (c) acquire assets or any securities of any business from any other Person, in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business; (d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement; (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate; (f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate; (g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or enter into any agreement with respect to the voting of its capital stock; (h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock; (i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company, except for (i) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices not to exceed $100,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 of notional debt in the aggregate; (j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period; (k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000; (l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement; (m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP; (n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount; (o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract; (p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; (q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement; (r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company; (s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or (t) agree, authorize or commit to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Visicu Inc), Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Cardinal Health Partners Lp)
Interim Operations. The Company covenants and agrees that, after the date hereof and prior Prior to the earlier of Closing Date, unless the termination of this Agreement or Company has consented in writing thereto, Assignor:
(i) shall conduct its operations according to its usual, regular and ordinary course in substantially the Effective Time same manner as heretofore conducted;
(unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreementii) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their intact its business organizations intact organization and goodwill and maintain existing relations and goodwill satisfactory relationships with Governmental Entitiesthose persons having business relationships with it;
(iii) shall promptly notify the Company of (x) any material change in its condition (financial or otherwise), customersbusiness, suppliersproperties, distributorsassets, creditors, lessors, employees and liabilities or the normal course of its business associates and keep available the services or of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreementits properties, (By) as Parent any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may approve in writing (such approval not to be unreasonably withheld or delayedcontemplated), (C) as required by applicable Law, or (Dz) as set forth in Section 6.1 the breach of the Company Disclosure Letter, the Company will not:
(a) adopt any representation or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentswarranty contained herein;
(biv) merge shall not issue any shares of its capital stock or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidatesecurities;
(cv) acquire assets shall not (w) incur, create, assume or any securities otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any business from other individual, corporation or other entity, (x) make any loans or advances to any other Personperson, except in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases each case in the ordinary course of business, (y) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any other person or (z) effect a sale or other disposition of any of the Assets or allow the creation of any lien or encumbrance thereon;
(dvi) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
shall not (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(gx) declare, set aside, make aside or pay any dividend or make any other distribution, payable in cash, stock, property distribution or otherwise, payment with respect to any shares of its capital stock or enter into any agreement with respect to the voting of its capital stock;
other ownership interests or (hy) reclassify, split, combine, subdivide directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of its capital stock or securities convertible or exchangeable into or exercisable make any commitment for any shares of its capital stocksuch action;
(ivii) incur shall not amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents
(viii) shall not increase the compensation payable or to become payable to its officers or employees, pay any indebtedness for borrowed money employment related or guarantee such indebtedness of another Personother bonus to its shareholder, or, except as presently bound to do, grant any severance or termination pay to, or issue enter into any employment or sell severance agreement with, any debt securities or warrants of its directors, officers or other rights to acquire employees;
(ix) shall not take any debt security of the Company, except for (i) indebtedness for borrowed money incurred action other than in the ordinary course of business consistent with past practices not to exceed $100,000 and in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms a manner consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;; and
(nx) settle shall not agree, in writing or otherwise, to take any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes foregoing actions or take any other similar action relating to the filing of which would make any Tax Return representation or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon warranty in this Agreement untrue or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses incorrect as of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(t) agree, authorize or commit to do any of the foregoingClosing Date.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Ultimate Software Group Inc), Asset Purchase Agreement (Ultimate Software Group Inc), Asset Acquisition Agreement (Ultimate Software Group Inc)
Interim Operations. The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable LawsLaws or as provided for in this Agreement, each of the Company and its Subsidiaries shall conduct its business shall be conducted in the ordinary course consistent with past practice and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their intact its business organizations intact organization and maintain existing relations and goodwill relationships with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates third parties and keep available the services of the its present executive officers or key employees of the Companyand employees. Without limiting the generality of the foregoing and in furtherance thereofforegoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), ) or (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will notnot and will not permit its Subsidiaries to:
(a) adopt or propose any change in its certificate articles of incorporation or bylaws or other applicable governing instruments;
(b) merge or consolidate the Company or any of its Subsidiaries with any other Person Person, or restructure, reorganize or completely or partially liquidateliquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(c) acquire assets or any securities of any business from any other Person, in any transaction or series of related transactions, other than (i) acquisitions pursuant in accordance with benefits outstanding prior to Contracts in effect as of the date of this Agreementhereof under the Company Stock Plans, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the CompanyCompany or any its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(d) materially and adversely modify, other terminate or renew any Material Contract or any Contract that would be a Material Contract if in existence on the date hereof, (i) except in the ordinary course of business, or (ii) if consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any encumbrance in or upon any of the properties or assets of any Company or Parent or any of its Subsidiaries under such Contract; provided, however, that the foregoing shall not prohibit entering into, modifying or renewing the Contracts in the ordinary course of business to the extent such Contracts can be terminated after any such entering into, modification or renewal at a cost of less than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of $200,000;
(e) except pursuant to Contracts in effect prior to the date of this Agreement;
(e) , create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Company or any of its Subsidiaries having a value in excess of $100,000 in the aggregate50,000;
(f) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $100,000 50,000 in the aggregate;
(g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or the capital stock of its Subsidiaries (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its such capital stock;
(h) other than as required by Section 5.1(r), reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its, or its Subsidiaries, capital stock or securities convertible or exchangeable into or exercisable for any shares of its such capital stock, except in accordance with cashless exercise provisions of rights granted prior to the date hereof under the Company Stock Plans;
(i) except under credit facilities set forth in Section 5.1(j)(i)(D) of the Company Disclosure Letter, incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the CompanyCompany or any of its Subsidiaries, except for (i) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices (i) not to exceed $100,000 200,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, (iii) guarantees incurred in compliance with this Section 6.1 by the Company of indebtedness of wholly-owned Subsidiaries of the Company or (iiiiv) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 250,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x6.1(j) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 200,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by to comply with, or to comply with changes in in, GAAP;
(nl) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) 200,000 or any obligation or liability of the Company in excess of such amount;
(om) amendmake, modify adopt or terminate change any Material Contractmaterial Tax election or Tax accounting method, or cancelfail to timely (taking into account all applicable extensions) file all Tax Returns required to be filed, modify and pay all Taxes required to be paid, on or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contractbefore the Closing Date;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(qn) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the CompanyCompany or its Subsidiaries, including capital stock of any of its Subsidiaries, except for product sales or rental of inventory in the ordinary course of business, sales of obsolete assets or and sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 250,000 in the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(ro) except as required pursuant to existing written, binding agreements or policies in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i5.1(h) of the Company Disclosure Letter, or as otherwise required by applicable Law, (i) grant or provide any severance or termination payments or benefits to any director, officer, officer or employee or other service provider of the CompanyCompany or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, officer or employee or other service provider of the CompanyCompany or any of its Subsidiaries, except, in the case of employees who are not officers, in the ordinary course of business consistent with past practice , (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, ; or (vi) forgive any loans to directors, officers or employees of the CompanyCompany or any of its Subsidiaries;
(sp) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII VII not being satisfied;
(q) take any action that would violate the CIA;
(r) knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent the consummation of the Merger; or
(ts) agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies Inc)
Interim Operations. The Seller and the Company covenants covenant and agrees thatagree that after June 30, after the date hereof 1997 and prior to the earlier of the termination of this Agreement or the Effective Time Closing (unless Parent Buyer shall otherwise approve in writing, and which approval shall not be unreasonably withheld or delayed), except as otherwise expressly contemplated by this Agreement:
(a) and except as required by applicable Laws, its the Company's business shall be conducted in the ordinary and usual course and, to and the extent consistent therewith, it Company shall use its commercially reasonable best efforts to preserve their its business organizations organizations, manufacturing license, pioneer status and manufacturing warehouse license intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not:
(a) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentsassociates;
(b) merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate;
(c) acquire assets or any securities of any business from any other Person, in any transaction or series of related transactions, other than shall not (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, of or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, encumber any shares of capital stock of the Companyof, or securities convertible into or exchangeable into or exercisable for any shares of such capital stockfor, or any options, warrants warrants, calls, commitments or other rights of any kind to acquire acquire, any shares of such its capital stock of any class or such convertible any voting debt or exchangeable securitiesany other property or assets; (ii) amend its Memorandum and Articles of Association or by-laws; (iii) split, other than required issuances of combine or reclassify its outstanding shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
capital stock; (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(giv) declare, set aside, make aside or pay any dividend or other distribution, make any distribution payable in cash, stock or property in respect of any capital stock; or (v) repurchase, property redeem or otherwise, with respect to otherwise acquire any shares of its capital stock or enter into any agreement with respect to the voting of its capital stock;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible into or exchangeable into or exercisable for any shares of its capital stock;
(ic) incur any indebtedness for borrowed money or guarantee such indebtedness of another Personthe Company shall not, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company, except for (i) indebtedness for borrowed money incurred than in the ordinary and usual course of business consistent with past practices not to exceed $100,000 in the aggregatebusiness, (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets or incur or modify any material indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or other liability; (iii) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth disclosed in budgets provided to the capital budgets set forth in Section 6.1(a)(x) of other party hereto prior to the Company Disclosure Letter and consistent therewithdate hereof, make any commitments for, make or authorize any capital expenditure expenditures other than in excess the ordinary and usual course of business and in amounts less than the equivalent of US $100,000 5,000 individually and US $25,000 in the aggregate during or, by any 12 month period;
means, make any acquisition of, or investment in, assets or stock of any other person or entity; or (kiv) enter into any Contractjoint venture, merger or other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000similar agreement with any person;
(ld) the Company shall not terminate, establish, adopt, enter into into, make any Contractnew grants or awards under, amend or otherwise modify, any compensation or benefit plan, or increase the salary, wage, bonus or other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreementcompensation of any employee except increases occurring in the ordinary and usual course of business in accordance with established past practice (which shall include normal periodic performance reviews and related compensation and benefit increases);
(me) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, shall not settle or compromise any Tax liability, claim material claims or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Companylitigation or, except for product sales in the ordinary and usual course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adoptbusiness modify, amend or terminate any Company Benefit Plan of its material contracts or amend the terms of waive, release or assign any outstanding equity-based awards, (iv) take any action to accelerate the vesting material rights or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Companyclaims;
(sf) take the Company shall not make any action tax election or omit permit any insurance policy naming it as a beneficiary or loss-payable payee to take any action that is reasonably likely to result be canceled or terminated except in any the ordinary and usual course of the conditions to the Merger set forth in Article VIII not being satisfiedbusiness; orand
(tg) agree, the Company shall not authorize or commit enter into an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Praegitzer Industries Inc)
Interim Operations. The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writing, writing and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and except as required by applicable Laws, its business Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use its commercially reasonable their respective best efforts to preserve their its business organizations organization intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not:
(a) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentsassociates;
(b) merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate;
(c) acquire assets or any securities of any business from any other Person, in any transaction or series of related transactions, other than it shall not (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose ofof or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate of incorporation or bylaws; (iii) split, grant, transfer, encumber, combine or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any reclassify its outstanding shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
; (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(giv) declare, set aside, make aside or pay any dividend or other distribution, payable in cash, stock or property in respect of any capital stock; or (v) repurchase, property redeem or otherwiseotherwise acquire, with respect or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or enter into any agreement with respect to the voting of its capital stock;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible into or exchangeable into or exercisable for any shares of its capital stock;
(c) neither it nor any of its Subsidiaries shall (i) incur issue, sell, pledge, dispose of or encumber any indebtedness for borrowed money or guarantee such indebtedness of another Personshares of, or issue securities convertible into or sell exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any debt securities kind to acquire, any shares of its capital stock of any class or warrants any Voting Debt or any other rights to acquire any debt security property or assets (other than, in the case of the Company, except Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans); (ii) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; (iii) make or authorize or commit for any capital expenditures other than in the ordinary and usual course of business; or (iv) by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other Person or entity;
(d) neither it nor any of its Subsidiaries shall (i) indebtedness for borrowed money incurred terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase the salary, wage, bonus or other compensation of any employees except (x) increases occurring in the ordinary and usual course of business consistent with past practices not (which shall include normal periodic performance reviews and related compensation and benefit increases) or (y) actions taken pursuant to exceed $100,000 in the aggregateSection 7.7, (ii) indebtedness for borrowed money in replacement amend any existing, or enter into any new, employment agreements with employees of existing indebtedness for borrowed money on terms substantially consistent with the Company or more beneficial than the indebtedness being replaced, its Subsidiary or (iii) interest rate swaps on customary commercial terms consistent with past practice take any action that would cause an acceleration of any employee rights under any Compensation and Benefit Plan, including but not limited to exceed $100,000 any vesting of notional debt in stock options prior to the aggregateEffective Time;
(je) except as set forth in the capital budgets set forth in Section 6.1(a)(x) neither it nor any of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxesits Subsidiaries shall file, settle or compromise any Tax liability, claim material claims or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Companylitigation or, except for product sales in the ordinary and usual course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adoptmodify, amend or terminate any Company Benefit Plan of its material Contracts or amend the terms of waive, release or assign any outstanding equity-based awards, (iv) take any action to accelerate the vesting material rights or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Companyclaims;
(sf) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated except in the ordinary and usual course of business;
(g) neither it nor any of its Subsidiaries shall take any action or omit to take any action that is reasonably likely would cause any of its representations and warranties herein to result become untrue in any of the conditions to the Merger set forth in Article VIII not being satisfiedmaterial respect; orand
(th) agree, neither it nor any of its Subsidiaries will authorize or commit enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees that, after From the date hereof and prior to Execution Date until the earlier of Effective Time or the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, pursuant to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective TimeArticle 7, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 Schedule 5.2 or as otherwise required herein, Company shall not, and shall cause its officers, directors, employees, consultants and advisors to not (in each case without the written consent of the Company Disclosure Letter, the Company will not:Parent):
(a) adopt or propose Take any change in action that would constitute a breach of its certificate of incorporation or bylaws or other applicable governing instrumentsrepresentations and warranties;
(b) merge Take any action that would prevent it from performing or consolidate the Company with any other Person cause it not to perform its covenants or restructure, reorganize or completely or partially liquidateclosing conditions hereunder;
(c) acquire assets Enter into, become bound by, or permit any securities of any business from any other Person, in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreementassets owned or used by it to become bound by, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000any material Contract, or amend, modify or terminate, or waive or exercise any material right or remedy or grant, transfer, license or assign any material right or material claims under, any material Contract (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of businessincluding any Intellectual Property Contract);
(d) issueAcquire, selllease or license any right or other asset from any other Person or sell encumber, convey, assign, or otherwise dispose, encumber, pledge, dispose of, grant, grant or transfer, encumberor lease or license or sublicense to any Person, or authorize amend or modify, any material right or asset of Company or interest therein (including with respect to Intellectual Property) or waive or relinquish any material right or enter into any action that could materially change the issuancevalue of Company without the prior consent of Parent;
(e) Declare, saleaccrue, pledgeset aside or pay any dividend or make any other distribution in respect of any shares of capital stock, dispositionor repurchase, grant, transfer, lease, license, guarantee redeem or encumbrance of, otherwise reacquire any shares of capital stock or other securities or distribute cash outside of the Company, or securities convertible or exchangeable into or exercisable for any shares Ordinary Course of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
(e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregateBusiness;
(f) make Use the proceeds of any loans, advances or bridge loans from its stockholders for any purpose other than for working capital contributions to or investments in any Person in excess of $100,000 for routine operating purposes (which may include Employee Payments included in the aggregateAdjustment Statement);
(g) declareSell, set asideissue, make grant or pay authorize the sale, issuance or grant of: (A) any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or enter into other security; (B) any agreement with respect option, call, warrant or right to the voting of its capital stock;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, acquire any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stockother security;
(i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company, except for (i) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices not to exceed $100,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(t) agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees that, after the date hereof and prior Prior to the earlier of Closing Date, unless the termination of this Agreement or Company has consented in writing thereto, which consent will not be unreasonably withheld, Assignor:
(i) shall conduct its operations according to its usual, regular and ordinary course in substantially the Effective Time same manner as heretofore conducted;
(unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreementii) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their intact its business organizations intact organization and goodwill and maintain existing relations and goodwill satisfactory relationships with Governmental Entitiesthose persons having business relationships with it;
(iii) shall promptly notify the Company of (x) any material change in its condition (financial or otherwise), customersbusiness, suppliersproperties, distributorsassets, creditors, lessors, employees and liabilities or the normal course of its business associates and keep available the services or of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreementits properties, (By) as Parent any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may approve in writing (such approval not to be unreasonably withheld or delayedcontemplated), (C) as required by applicable Law, or (Dz) as set forth in Section 6.1 the breach of the Company Disclosure Letter, the Company will not:
(a) adopt any representation or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentswarranty contained herein;
(biv) merge shall not issue any shares of its capital stock or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidatesecurities;
(cv) acquire assets shall not (w) incur, create, assume or any securities otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any business from other individual, corporation or other entity, (x) make any loans or advances to any other Personperson, except in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases each case in the ordinary course of business, (y) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any other person or (z) effect a sale or other disposition of any of the Assets or allow the creation of any lien or encumbrance thereon;
(dvi) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
shall not (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(gx) declare, set aside, make aside or pay any dividend or make any other distribution, payable in cash, stock, property distribution or otherwise, payment with respect to any shares of its capital stock or enter into any agreement with respect to the voting of its capital stock;
other ownership interests or (hy) reclassify, split, combine, subdivide directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of its capital stock or securities convertible or exchangeable into or exercisable make any commitment for any shares of its capital stocksuch action;
(ivii) incur shall not amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents
(viii) shall not increase the compensation payable or to become payable to its officers or employees, pay any indebtedness for borrowed money employment related or guarantee such indebtedness of another Personother bonus to its shareholder, or, except as presently bound to do, grant any severance or termination pay to, or issue enter into any employment or sell severance agreement with, any debt securities or warrants of its directors, officers or other rights to acquire employees;
(ix) shall not take any debt security of the Company, except for (i) indebtedness for borrowed money incurred action other than in the ordinary course of business consistent with past practices not to exceed $100,000 and in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms a manner consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;; and
(nx) settle shall not agree, in writing or otherwise, to take any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes foregoing actions or take any other similar action relating to the filing of which would make any Tax Return representation or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon warranty in this Agreement untrue or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses incorrect as of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(t) agree, authorize or commit to do any of the foregoingClosing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ultimate Software Group Inc)
Interim Operations. The Company covenants and agrees that, after (a) From the date hereof and prior to until the Closing Date or the earlier of the termination of this Agreement or (the Effective Time (unless Parent shall otherwise approve in writing“Interim Period”), and except as otherwise expressly set forth on Schedule 6.01(a) or as contemplated by this Agreement, Seller shall (x) and except as required by applicable Laws, its business shall be conducted use commercially reasonable efforts to cause the Targets to conduct the Business only in the ordinary and usual course andof business in all material respects, to the extent consistent therewith, it shall (y) use its commercially reasonable efforts to preserve their the present business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services operations of the present executive officers or key employees Business, its work force, and relations with suppliers and customers and (z) cause each of the Company. Without limiting the generality Targets not to undertake any of the foregoing following without Buyer’s written consent (which consent shall not be unreasonably withheld, conditioned or delayed and in furtherance thereofshall not be required if seeking such consent would violate applicable Law):
(i) amend its organizational documents;
(ii) issue, from the date sell, deliver or transfer any of this Agreement until the Effective Timeits equity interests or other securities;
(iii) split, combine, or reclassify any of its outstanding equity interests or repurchase, redeem or otherwise acquire any of its equity interests;
(iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization;
(v) incur, guarantee, or assume any Indebtedness except for any (A) as otherwise expressly required Indebtedness that will be paid off or expressly permitted by this Agreement, terminated or will no longer be binding on the Targets at or prior to the Closing and (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not:
(a) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentsIntercompany Indebtedness;
(bvi) merge create, or consolidate permit to be created, any Lien (other than a Permitted Lien, a Statutory Lien or a Lien that will be terminated at or prior to the Company with Closing) against any of the material assets or properties of any of the Targets, or allow any such material assets or properties to become subject to any Lien (other Person than a Permitted Lien, a Statutory Lien or restructure, reorganize a Lien that will be terminated at or completely or partially liquidateprior to the Closing);
(cvii) acquire sell, transfer, convey or otherwise dispose of any material assets or any securities properties of any business from any other Person, in any transaction or series of related transactions, the Targets other than (i) acquisitions pursuant to Contracts in effect as the sale of inventory and the date disposition of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases obsolete assets in the ordinary course of business;
(dviii) issuefail to maintain its limited liability company, sellpartnership or corporate existence, pledge, dispose of, grant, transfer, encumberas applicable, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, consolidate with any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this AgreementPerson;
(eix) create acquire all or incur any Lien material to the Company on any assets substantially all of the Company having a value in excess assets or stock of $100,000 in the aggregateany other Person;
(fx) make purchase any loanssecurities of any Person, advances or capital contributions to or except for short term investments in any Person in excess of $100,000 made in the aggregateordinary course of business;
(gxi) declareenter into, set asideterminate or amend in any material respect any Material Contract, make except any such Material Contract that is entered into, terminated or pay any dividend amended in the ordinary course of business;
(xii) other than as provided on Schedule 6.01(a)(xii), (A) increase the salary or other distributioncompensation of any employee of the Targets or (B) grant any bonus, payable in cash, stock, property benefit or otherwise, with respect other direct or indirect compensation to any employee of its capital stock the Targets;
(xiii) other than as provided on Schedule 6.01(a)(xiii), (A) increase the coverage or benefits available under an Employee Benefit Plan, (B) enter into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with respect any employee of the Targets (or amend any such agreement), or (C) change the number of Persons employed or engaged in the Business (except to the voting extent employees resign or are terminated in the ordinary course of its capital stock;
business); provided, however, that if there is a vacancy in a senior management or similar position, Seller shall cause the Targets not to fill such position (h) reclassify, split, combine, subdivide other than with a current or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security senior manager of the Company, except for (iTargets) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices not to exceed $100,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 of notional debt in the aggregateotherwise;
(jxiv) (A) make, change or rescind any material election relating to Taxes, (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to material Taxes, or consent to any waiver of the statute of limitations thereof (other than any such settlement, compromise or consent regarding Taxes that are currently subject to an audit), (C) except as set forth may be required by Law, make any change to any of its methods of reporting income or deductions for Tax purposes from those employed in the capital budgets set forth in Section 6.1(a)(xpreparation of its most recently filed Tax Returns, (D) change any annual Tax accounting period, (E) adopt or change any method of the Company Disclosure Letter and consistent therewithTax accounting, make (F) obtain any Tax ruling or authorize enter into any capital expenditure in excess of $100,000 in the aggregate during closing agreement or (G) amend any 12 month periodmaterial Tax Returns or file claims for any material Tax refunds (other than any Tax Return currently subject to an audit);
(kxv) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company commitment for capital expenditures in excess of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000those set forth on Schedule 6.01(a)(xv);
(lxvi) enter into institute, settle or compromise any ContractAction, other than (A) in a Customer Contract, manner that would have been a Material Contract had result in any material restrictions on the conduct of the Business as it been entered into prior to this Agreement;
is currently being conducted or (mB) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 500,000 for any individual Action (net of insurance coverage) or other than as to any obligation or liability of the Company in excess of Action for which such amountamount is assumed by Seller);
(oxvii) amendchange or modify its current credit, modify collection or terminate payment policies, procedures or practices in any Material Contractmaterial respect, including such policies, procedures or cancelpractices, modify acceleration of collections or waive any debts receivables (whether or claims held by it under any Material Contract not past due) or waive any rights under any Material Contract;
(p) make fail to pay or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the delay payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses payables or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfiedLiabilities; or
(txviii) agree, authorize or commit agree to do anything prohibited by this Section 6.01.
(b) Without in any way limiting Buyer’s or Seller’s rights or obligations under this Agreement, Buyer and Seller understand and agree that (i) during the Interim Period, nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operation of the foregoingBusiness and (ii) during the Interim Period, Seller and the Targets shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.
Appears in 1 contract
Interim Operations. The Company covenants and agrees that, after the date hereof and prior Prior to the earlier of Closing Date, unless the termination of this Agreement or Company has consented in writing thereto, the Effective Time Operating Company:
(unless Parent i) shall otherwise approve conduct its operations according to its usual, regular and ordinary course in writing, and except substantially the same manner as otherwise expressly contemplated by this Agreementheretofore conducted;
(ii) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their intact its business organizations intact organization and goodwill and maintain existing relations and goodwill satisfactory relationships with Governmental Entitiesthose persons having business relationships with it;
(iii) shall promptly notify the Company of (x) any material change in its condition (financial or otherwise), customersbusiness, suppliersproperties, distributorsassets, creditors, lessors, employees and liabilities or the normal course of its business associates and keep available the services or of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreementits properties, (By) as Parent any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may approve in writing (such approval not to be unreasonably withheld or delayedcontemplated), (C) as required by applicable Law, or (Dz) as set forth in Section 6.1 the breach of the Company Disclosure Letter, the Company will not:
(a) adopt any representation or propose any change in its certificate of incorporation or bylaws or other applicable governing instrumentswarranty contained herein;
(biv) merge shall not issue any equity interest; 9
(v) shall not (w) incur, create, assume or consolidate otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the Company with obligations of any other Person individual, corporation or restructureother entity, reorganize (x) make any loans or completely or partially liquidate;
(c) acquire assets or any securities of any business from advances to any other Personperson, except in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases each case in the ordinary course of business, (y) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any other person or (z) effect a sale or other disposition of any of the Assets or allow the creation of any lien or encumbrance thereon;
(dvi) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
shall not (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(gx) declare, set aside, aside or make any distribution or pay any dividend or other distribution, payable in cash, stock, property or otherwise, payment with respect to any shares of its capital stock or enter into any agreement other ownership interest, other than such distributions or payments as are consistent with respect to the voting of its capital stock;
past practice or (hy) reclassify, split, combine, subdivide directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of its capital stock or securities convertible or exchangeable into or exercisable make any commitment for any shares of its capital stocksuch action;
(ivii) incur shall not amend or otherwise change its articles of incorporation, by-laws or equivalent organizational documents;
(viii) shall not increase the compensation payable or to become payable to its officers or employees, pay any indebtedness for borrowed money employment related or guarantee such indebtedness of another Personother bonus to its shareholder, or, except as presently bound to do, grant any severance or termination pay to, or issue enter into any employment or sell severance agreement with, any debt securities or warrants of its directors, officers or other rights to acquire employees;
(ix) shall not take any debt security of the Company, except for (i) indebtedness for borrowed money incurred action other than in the ordinary course of business consistent with past practices not to exceed $100,000 and in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms a manner consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(k) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any Contract, other than a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreement;
(m) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;; and
(nx) settle shall not agree, in writing or otherwise, to take any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes foregoing actions or take any other similar action relating to the filing of which would make any Tax Return representation or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon warranty in this Agreement untrue or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses incorrect as of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(t) agree, authorize or commit to do any of the foregoingClosing Date.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly specifically permitted by any other provision of this Agreement, Agreement (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 7.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or except with Parent’s prior written approval, which approval shall not be unreasonably withheld, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practice and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to protect and preserve the scope and breadth of its assets and the Company Intellectual Property and to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, outside counsel, clinical trial investigators or managers of its clinical trials, employees and consultants. Without limiting the generality of the foregoing, and as an extension thereof, the Company will notshall not and shall not permit any of its Subsidiaries to, from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
(a) adopt amend or propose any change in its to amend the certificate of incorporation or bylaws or other applicable comparable governing instrumentsinstruments of the Company or any of its Subsidiaries or amend, modify or waive any provision of the Rights Agreement;
(b) merge acquire (including, without limitation, by merger, consolidation, or consolidate the Company with acquisition of stock, assets or Intellectual Property or any other business combination) any corporation, partnership, other business organization or any division thereof or any assets or interest in any assets from any other Person in excess of $500,000 individually or restructure, reorganize or completely or partially liquidate$1,000,000 in the aggregate;
(c) acquire assets split, combine or any securities of any business from any other Person, in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any reclassify its outstanding shares of capital stock of the Company, or securities convertible or exchangeable Company nor enter into or exercisable for any shares agreement with respect to voting of such any of its capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such securities convertible into or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreementfor such shares;
(e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(gd) declare, set aside, make aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, in respect of the capital stock of the Company or any of its Subsidiaries, other than dividends from its wholly-owned Subsidiaries;
(e) purchase, redeem or otherwise acquire, except in connection with respect the Company Option Plan, the Preferred Stock or the AZ Note, or permit any of its Subsidiaries to purchase or otherwise acquire any shares of its capital stock or enter into any agreement with respect to the voting of its capital stock;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(f) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any material property or assets or interest therein of the Company or any of its Subsidiaries (including (i) Intellectual Property material to the business of the Company and its Subsidiaries, but excluding non-exclusive Intellectual Property licenses granted in the ordinary course of business to third parties, and (ii) capital stock of any of the Company’s Subsidiaries);
(g) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security securities of the CompanyCompany or any of its Subsidiaries or assume, except for guarantee or endorse, as an accommodation or otherwise, the obligations of any other Person, in the case of any of the foregoing, involving an aggregate principal amount or potential guaranteed amount in excess of $500,000 or otherwise incur or modify any material indebtedness or liability;
(h) 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 Voting Debt or any other property or assets of the Company or any of its Subsidiaries (other than in accordance with the Rights Agreement and other than shares issuable pursuant to options and other stock-based awards outstanding on the date hereof under the Stock Plan or upon conversion of the Convertible Notes, the AZ Note or the Preferred Stock);
(i) indebtedness for borrowed money incurred make or agree to make any capital expenditures other than any such expenditure (A) not in excess of $200,000 individually or $1,000,000 in the aggregate or (B) in conformance with the Draft ET Meeting 2006 Plan Review, dated December 7, 2005, furnished to Parent prior to the date hereof;
(j) waive any benefits of, agree to modify in any respect, fail to enforce or consent to any matter with respect to which consent is required under any (i) standstill or similar agreement containing provisions prohibiting a third party from purchasing the capital stock or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries and to which the Company or any of its Subsidiaries is a party or (ii) confidentiality, non-solicitation or similar agreements to which the Company or any of its Subsidiaries is a party, excluding, however, waivers of confidentiality relating to non-material Intellectual Property in the ordinary course of business consistent with past practices not to exceed $100,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month periodpractice;
(k) enter into make any Contractchange in accounting practices, other than policies or principles, except as required by GAAP or by Law or a Customer Contract, that is reasonably likely Governmental Entity as concurred to require aggregate annual payments to or from by the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000Company’s independent auditors;
(l) enter into into, modify, amend or terminate, or waive, release or assign any Contractmaterial rights or claims under (i) any Contract pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to research, development, clinical trial, distribution, supply, manufacturing, marketing or co-promotion of, or collaboration with respect to, any product or product candidate for which the Company or any of its Subsidiaries is currently engaged in research and development (excluding (A) clinical study agreements with clinical trial sites, (B) non-disclosure agreements (other than a Customer Contractnon-disclosure, that would have been a Material Contract had it been standstill and exclusivity agreements relating to potential business combinations or acquisitions involving the Company or any of its Subsidiaries or similar transactions), (C) Contracts with independent contractors or vendors providing for services to the Company or any of its Subsidiaries (other than material manufacture or supply services Contracts or material Contracts with contract research organizations for clinical trials related services), and (D) customary material transfer Contracts (other than material transfer Contracts for pre-clinical products or clinical products of the Company or any of its Subsidiaries with commercial, pharmaceutical or biotechnology companies), in the case of each of the foregoing (A), (B), (C) or (D), entered into prior in the ordinary course of business consistent with past practice); or (ii) any Contract pursuant to this Agreementwhich the Company, any of its Subsidiaries or any other party thereto has, or will have, material continuing obligations, rights or interests;
(m) make any changes with respect to accounting policies material loan, advance, capital contribution to, or proceduresinvestment in, except as required by changes any Person other than (i) loans, advances or capital contributions to, or investments in, wholly-owned Subsidiaries of the Company and (ii) loans, advances or capital contributions to, or investments in, any other Person in GAAPan amount not in excess of $250,000 in the aggregate;
(n) settle enter into, modify, amend or terminate any litigation Contract or other proceedings before a Governmental Entity for an amount in excess of $100,000 waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (net of insurance coveragei) adversely affect the Company (or, following the Merger, Parent or any obligation or liability Affiliates of Parent) in any material respect, (ii) impair the ability of the Company to perform its obligations under this Agreement in excess any material respect, (iii) prevent or materially delay or impair the consummation of such amountthe Merger and the other transactions contemplated by this Agreement or (iv) limit or restrict the Surviving Corporation, any Affiliate of the Surviving Corporation or any of their successors and assigns from engaging or competing in any line of business, including the research, development and commercialization of any antibody or therapeutic agent directed at a specific antigen or other target or in any therapeutic area, or in any geographic area;
(o) amendpre-pay any long-term debt or accelerate or delay any material payments or the collection of payment due to the Company, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contractexcept in the ordinary course of business consistent with past practice;
(p) make unless reasonably determined to be beneficial to the Company’s prosecution of its patent or change any Tax electionTrademark applications, change an annual accounting period(i) grant, file any amended Tax Returnextend, enter into any closing agreementamend (except as required in the diligent prosecution of the Company Intellectual Property), waive or extend modify any statute of limitation with respect to Taxes, settle material rights in or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing Company Intellectual Property, Co-Owned Intellectual Property or Licensed Intellectual Property, (ii) fail to diligently prosecute the Company’s and its Subsidiaries’ patent applications, or (iii) fail to exercise a right of renewal or extension under any Tax Return or the payment of any Taxmaterial Licensed Intellectual Property;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose (i) increase the number of any assets, product lines or businesses employees of the CompanyCompany and the Company Subsidiaries by more than 4.5%, except for product sales in based on the ordinary course number of businessemployees employed by the Company and the Company Subsidiaries as of the date hereof, sales of obsolete assets or sales, leases, licenses (ii) enter into an employment agreement or other dispositions of assets with a fair market value not in excess of $100,000 the aggregaterelationship, other than pursuant to Contracts in effect prior to the date of this Agreementan “at will” employment relationship, with any Person;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement hereof and set forth in Section 5.1(h)(i) 5.8 of the Company Disclosure Letter, as provided in Section 4.5 of this Agreement or as otherwise required by applicable Law or tax qualification requirement, (i) grant or provide or adopt a plan intended to grant or provide any retention, severance or termination payments or benefits to any director, officer, officer or employee or other service provider of the CompanyCompany or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, officer or employee or other service provider of the CompanyCompany or any of its Subsidiaries, except for increases in base salary in the ordinary course of business consistent with past practice for employees who are not officers that do not exceed, on average, 5.0% of the base salary of those receiving such salary increases, and that the increases are not being given as promotional increases, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, GAAP or applicable Laws; or (vi) issue or forgive any loans to directors, officers officers, contractors or employees of the CompanyCompany or any of its Subsidiaries;
(s) take communicate with Company employees regarding the compensation, benefits or other treatment they will receive in connection with the proposed Merger, unless any action such communications are consistent with prior directives or omit documentation provided to take the Company by Parent (in which case, the Company shall provide Parent with prior notice of and the opportunity to review and comment upon any action that is reasonably likely such communications);
(t) make any material Tax election or settle or compromise any material liability for Taxes, change any annual Tax accounting period (except as required by Law), change any Tax accounting method (except as required by Law), file any material amended Tax Return, enter into any closing agreement relating to result any material Tax, surrender any right to claim a material Tax refund or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(u) in respect of any Contract, grant rights thereunder to, or accept the designation thereunder of, any newly proposed antigen, which grant or designation would limit or restrict Parent or any of its Affiliates (other than, following the Effective Date, the Company and its Subsidiaries) from researching, developing or commercializing any antibody or other therapeutic agent directed at such antigen, for any therapeutic area or in any of the conditions geographic area, unless and only to the Merger set forth in Article VIII not being satisfiedextent that any such failure to make such grant or acceptance will constitute a breach under such Contract and provided that the Company has provided to Parent at least 10 business days' prior written notice of any such grant or acceptance, which notice shall identify the antigen proposed to be designated, unless such disclosure is prohibited by the terms of such Contract; or
(tv) agree, authorize or commit enter into an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Interim Operations. The Company covenants and agrees that, after From the date hereof and prior Effective Date to the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve in writingClosing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company SMYD will not:
, without the prior written approval of Geldenhuys: (a) adopt amend or propose any otherwise change in its certificate Articles of incorporation Incorporation; () issue or bylaws sell or other applicable governing instruments;
(b) merge authorize for issuance or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate;
(c) acquire assets or any securities sale additional shares of any business from any other Person, in any transaction or series class of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any subscriptions, options (including employee stock options), warrants warrants, rights or convertible securities or other rights of any kind agreements obligating it to acquire any issue shares of such its capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
stock; (e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, distribution with respect to any of its capital stock or enter into any agreement with respect to the voting of its capital stock;
; (h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock stock; () issue any instrument that permits participation in the revenues or securities convertible or exchangeable into or exercisable for any shares profits of its capital stock;
SMYD; (i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company, except for (i) indebtedness for borrowed money incurred accounts payable in the ordinary course of its business; () permit the sale or encumbrance of any of the assets of SMYD; () enter into any employment or severance agreements or similar agreements with any person; or () agree to, make, engage in or allow to occur or continue any of the following:
(i) Any material transaction;
(ii) any capital expenditure except a capital expenditure for cash up to US$5,000;
(iii) Any changes in its condition (financial or otherwise), liabilities, assets, or business consistent with past practices not to exceed $100,000 that, when considered individually or in the aggregate, have a material adverse change;
(iiiv) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replacedThe destruction of, damage to, or loss of any asset (iiiregardless of whether covered by insurance) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $100,000 as a direct or indirect result of notional debt the action or inaction of SMYD, that, when considered individually or in the aggregate, has a material adverse change upon the condition (financial or otherwise) or business of SMYD;
(jv) except as set forth Any change in the capital budgets set forth accounting methods or practices (including, without limitation, any change in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, make depreciation or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month periodamortization policies or rates);
(kvii) enter into Any increase in the salary or other compensation payable or to become payable to any Contractof its officers or directors, or the declaration, payment, or commitment or obligation of any kind for the payment of a bonus or other than a Customer Contract, that is reasonably likely additional salary or compensation to require aggregate annual payments to or from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000any such person;
(lviii) enter into The material amendment or termination of any material Contract, other than agreement, or license to which it is a Customer Contract, that would have been a Material Contract had it been entered into prior to this Agreementparty;
(mix) make Any loan to any changes with respect to accounting policies person or proceduresentity, except as required by changes in GAAPor the guaranteeing of any loan;
(nx) settle any litigation Any mortgage, pledge or other proceedings before encumbrance of any asset of SMYD by SMYD or as a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) direct or any obligation or liability indirect result of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 5.1(h)(i) of the Company Disclosure Letter, (i) grant or provide any severance or termination payments or benefits to any director, officer, employee or other service provider of the Company, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any inaction of the conditions to the Merger set forth in Article VIII not being satisfiedSMYD; or
(txi) agree, authorize The waiver or commit to do release of any right or claim of the foregoingSMYD by SMYD.
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