NEGATIVE COVENANTS OF COMPANY. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated herein, Company covenants and agrees that it will not do or agree or commit to do any of the following: (a) amend the Articles of Incorporation, Bylaws or other governing instruments of Company, or (b) except for short-term borrowings with a maturity of one year or less in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandum); or (c) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or (d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity Right; or (e) adjust, split, combine or reclassify any capital stock of Company or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage or otherwise dispose of or otherwise encumber any Asset having a book value in excess of $10,000 other than in the ordinary course of business for reasonable and adequate consideration, or transfer or license to any Person other than Company or otherwise extend, amend or modify in any material respect any rights to material Intellectual Property other than in the ordinary course of business (including changing any domain names or failing to renew existing domain name registrations on a timely basis), or enter into grants to future Intellectual Property rights, other than as may be required by applicable Law; or
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. From Except as expressly contemplated by this Agreement or otherwise approved in writing by the parties, from the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementTime, unless the prior written consent of Parent Company shall have been obtainednot, and except the Members shall not (whether in its, his or her capacity as otherwise expressly contemplated hereina member, director, officer, employee or agent of Company) and shall cause Company covenants and agrees that it will not do or agree or commit to to, do any of the following:
(a) (i) increase the compensation payable or to become payable to any officer of Company or to any employee other than a leased employee, (ii) grant any severance or termination pay, or enter into any severance agreement with, any officer or employee, (iii) enter into or amend any employment agreement with any officer or employee that would extend beyond the Articles of IncorporationEffective Time except on an at-will basis or (iv) establish, Bylaws adopt, enter into or other governing instruments of Companyamend any Employee Benefit Plan, orexcept as may be required to comply with applicable Law;
(b) except make any distribution in respect of the Company Membership Interests;
(c) effect any reorganization or recapitalization;
(d) issue, deliver, award, grant or sell, or authorize the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims, pledges, limitations in voting rights, charges or other encumbrances) of, any membership interests, any securities convertible into or exercisable or exchangeable for short-term borrowings with any membership interests, or any rights, warrants or options to acquire any membership interests;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a maturity portion of one year the assets of, or less by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandumpractice); or;
(cf) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or
(d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity Right; or (e) adjust, split, combine or reclassify any capital stock of Company or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage exchange, mortgage, pledge, transfer or otherwise dispose of of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber dispose of, any Asset having a book value in excess of $10,000 other than its assets, except for dispositions in the ordinary course of business for reasonable and adequate considerationconsistent with past practice;
(g) directly or indirectly, through any representative or otherwise, enter into any agreement, discussion or negotiation with, or transfer provide information to, or license solicit, encourage, entertain or otherwise consider any inquiries or proposals from, any other entity or other Person with respect to (i) the possible acquisition of the assets and/or business of Company, or (ii) any Person business combination involving Company, whether by way of merger, consolidation, membership interest exchange or other acquisition or otherwise (other than Company or otherwise extend, amend or modify in any material respect any rights to material Intellectual Property other than sales of inventory in the ordinary course course). Company and the Members will immediately notify LAN regarding any contact between the Members, Company and/or their representatives on the one hand and any other entity or other Person on the other hand regarding any such offer or proposal or any related inquiry;
(h) adopt any amendments to its Articles of business Organization or Operating Agreement;
(including changing i) (i) change any domain names or failing to renew existing domain name registrations on a timely basis)of its methods of accounting in effect at the date hereof, or enter into grants (ii) make or rescind any express or deemed election relating to future Intellectual Property rightsTaxes, other than settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of the federal income Tax returns for the taxable years ending December 31, 2004 and December 31, 2005, except in either case as may be required by applicable Law, the IRS or GAAP;
(j) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument;
(k) fail to renew any agreement favorable to Company which is used in the conduct of its business or compromise any obligation or amount owed to Company;
(l) incur any Expenses (as defined below) other than reasonable Expenses which are directly related to its, his or her participation in the transactions contemplated hereby; or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. From Except as expressly contemplated by this Agreement (e.g., to comply with express closing conditions set forth in Section 6) or otherwise consented to in writing by Purchaser, such consent not to be unreasonably withheld, from the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated hereinClosing Date, Company covenants and agrees that it will shall not do or agree or commit and Parent and Stockholder shall take all actions necessary to cause Company not to do any of the following:
(a) amend the Articles Declare or pay any non-cash dividend on, or make any other non-cash distribution in respect of, outstanding shares of Incorporation, Bylaws or other governing instruments of Company, orits capital stock.
(b) except for short-term borrowings with a maturity of one year or less in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or (i) permit any such Lien to exist (Person other than in connection with Liens in effect as Parent to own any shares of the date hereof that are disclosed in the Company Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, (ii) create any subsidiaries or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or
(d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issuejoint venture, sellpartnership or similar arrangement; (iii) liquidate, pledge, encumber, dissolve or authorize the issuance of, effect any reorganization or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity Rightrecapitalization; or (eiv) adjust, split, combine or reclassify any of its capital stock of Company or issue or authorize or propose the issuance of any other securities in respect of of, in lieu of, or in substitution for for, shares of its capital stock, provided that, subject to Section 6.11, Company Capital Stockwill be permitted to complete its proposed restructuring related to Airborne Engines and KALZ;
(c) propose or adopt any amendments to its Articles of Incorporation or its Bylaws;
(d) accelerate or alter the timing for billing customers of the Company outside the Ordinary Course of Business or change any practices with respect to the collection of accounts receivable outside the Ordinary Course of Business;
(e) without the prior written consent of Purchaser, take or fail to take any action described in Section 3.36(a) and/or Sections 3.36(c) through 3.36(t);
(f) without the prior written consent of Purchaser, enter into any Material Agreement, or sellany other agreement, leasecontract, mortgage lease or otherwise dispose license (or series of related agreements, contracts, leases or otherwise encumber licenses) with any Asset having a book value in excess of $10,000 other than in the ordinary course of business for reasonable and adequate considerationforeign Person or foreign Governmental Authority; or
(g) intentionally take, or transfer offer or license propose to take, or agree to take in writing or otherwise, (i) any Person other than Company of the actions described in this Section 5.2 which require the consent of Purchaser, (ii) any action which would result in a breach of any of Company’s representations and warranties in this Agreement or otherwise extend, amend or modify (iii) any action which would result in any material respect any rights to material Intellectual Property other than of the conditions set forth in the ordinary course of business (including changing any domain names or failing to renew existing domain name registrations on a timely basis), or enter into grants to future Intellectual Property rights, other than as may be required by applicable Law; orSection 6 not being satisfied.
Appears in 1 contract
Samples: Stock Purchase Agreement (United Industrial Corp /De/)
NEGATIVE COVENANTS OF COMPANY. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated herein, Company covenants and agrees that it will not do or agree or commit to do any of the following:
(a) amend the Articles of Incorporation, Bylaws or other governing instruments of Company, or
(b) except for short-term borrowings with a maturity of one year or less in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans)exchange, directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend or make any other distribution in respect of Company Capital Common Stock; or
(d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity RightCommon Stock; or or
(e) adjust, split, combine or reclassify any capital stock of Company or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage or otherwise dispose of or otherwise encumber any Asset having a book value in excess of $10,000 other than in the ordinary course of business for reasonable and adequate consideration, or transfer or license to any Person other than Company or otherwise extend, amend or modify in any material respect any rights to material Intellectual Property other than in the ordinary course of business (including changing any domain names or failing to renew existing domain name registrations on a timely basis), or enter into grants to future Intellectual Property rights, other than as may be required by applicable Law; or
(f) purchase any securities or make any material investment, either by purchase of stock or securities, contributions to capital, Asset transfers, or purchase of any Assets, in any Person other than a wholly owned Company Subsidiary, or otherwise acquire direct or indirect control over any Person; or
(g) grant any increase in compensation or benefits to the employees or officers of Company, except in accordance with past practice disclosed in Section 6.2(g) of the Company Disclosure Memorandum or as required by Law; pay any severance or termination pay or any bonus other than pursuant to written policies or written Contracts in effect on the date of this Agreement and disclosed in Section 6.2(g) of the Company Disclosure Memorandum; enter into or amend any severance agreements with officers of Company; grant any increase in fees or other increases in compensation or other benefits to directors of Company except in accordance with past practice disclosed in Section 6.2(g) of the Company Disclosure Memorandum; or
(h) enter into or amend any employment Contract between Company and any Person (except for any such amendment as is required by Law) that Company does not have the unconditional right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan or terminate or withdraw from, or make any material change in or to, any existing employee benefit plans of Company other than any such change that is required by Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any such plan, or make any distributions from such employee benefit plans, except as required by Law, the terms of such plans or consistent with past practice; or
(j) make any significant change in any Tax or accounting methods or systems of internal accounting controls, except as may be appropriate to conform to changes in Tax Laws or GAAP as concurred to by Parent’s independent auditors; or
(k) commence any Litigation other than in accordance with past practice, or settle any Litigation involving any Liability of Company for money damages or restrictions upon the operations of Company; or
(l) except in the ordinary course of business, enter into, modify, amend or terminate any material Contract or waive, release, compromise or assign any material rights or claims.
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. From Except as expressly contemplated by this Agreement or otherwise approved in writing by the parties, from the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementTime, unless the prior written consent of Parent Company shall have been obtainednot, and except the Shareholders shall not (whether in its, his or her capacity as otherwise expressly contemplated hereina Shareholder, director, officer, employee or agent of Company) and shall cause Company covenants and agrees that it will not do or agree or commit to to, do any of the following:
(a) (i) increase the compensation payable or to become payable to any officer of Company or to any employee other than a leased employee, (ii) grant any severance or termination pay, or enter into any severance agreement with, any officer or employee, (iii) enter into or amend any employment agreement with any officer or employee that would extend beyond the Articles of IncorporationEffective Time except on an at-will basis or (iv) establish, Bylaws adopt, enter into or other governing instruments of Companyamend any Employee Benefit Plan, orexcept as may be required to comply with applicable Law;
(b) except make any distribution in respect of the Company Shares;
(c) effect any reorganization or recapitalization;
(d) issue, deliver, award, grant or sell, or authorize the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims, pledges, limitations in voting rights, charges or other encumbrances) of, any shares, any securities convertible into or exercisable or exchangeable for short-term borrowings with any shares, or any rights, warrants or options to acquire any shares;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a maturity portion of one year the assets of, or less by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandumpractice); or;
(cf) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or
(d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity Right; or (e) adjust, split, combine or reclassify any capital stock of Company or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage exchange, mortgage, pledge, transfer or otherwise dispose of of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber dispose of, any Asset having a book value in excess of $10,000 other than its assets, except for dispositions in the ordinary course of business for reasonable and adequate considerationconsistent with past practice;
(g) directly or indirectly, through any representative or otherwise, enter into any agreement, discussion or negotiation with, or transfer provide information to, or license solicit, encourage, entertain or otherwise consider any inquiries or proposals from, any other entity or other Person with respect to (i) the possible acquisition of the assets and/or business of Company, or (ii) any Person business combination involving Company, whether by way of merger, consolidation, membership interest exchange or other acquisition or otherwise (other than Company or otherwise extend, amend or modify in any material respect any rights to material Intellectual Property other than sales of inventory in the ordinary course course). Company and the Shareholders will immediately notify AKC regarding any contact between the Shareholders, Company and/or their representatives on the one hand and any other entity or other Person on the other hand regarding any such offer or proposal or any related inquiry;
(h) adopt any amendments to its Articles of business Incorporation or Bylaws;
(including changing i) (i) change any domain names or failing to renew existing domain name registrations on a timely basis)of its methods of accounting in effect at the date hereof, or enter into grants (ii) make or rescind any express or deemed election relating to future Intellectual Property rightsTaxes, other than settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of the federal income Tax returns for the taxable years ending December 31, 2007 and December 31, 2008, except in either case as may be required by applicable Law, the IRS or GAAP;
(j) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument;
(k) fail to renew any agreement favorable to Company which is used in the conduct of its business or compromise any obligation or amount owed to Company;
(l) incur any Expenses (as defined below) other than reasonable Expenses which are directly related to its, his or her participation in the transactions contemplated hereby; or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Savoy Energy Corp)
NEGATIVE COVENANTS OF COMPANY. From Except as expressly contemplated by this Agreement or Schedule 5.04, or otherwise consented to in writing by Holdings (which consent will not be unreasonably withheld or delayed), from the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementTime, unless the prior written consent of Parent shall have been obtainedCompany will not do, and except as otherwise expressly contemplated herein, Company covenants and agrees that it will not do or agree or commit permit any of its subsidiaries to do do, any of the followingforegoing:
(a) amend increase the Articles of Incorporationcompensation payable to or to become payable to any director, Bylaws officer, key employee or consultant (other governing instruments of Company, or
(b) except than for short-term borrowings with a maturity of one year or less annual merit increases and bonuses in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for practices and increases resulting from the obligations operation of any other Personcompensation arrangements in effect prior to the date hereof), or impose, grant any severance or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist termination pay (other than in connection with Liens pursuant to the normal severance policy of Company or its subsidiaries as in effect as of on the date hereof of this Agreement or as otherwise may be required under the Workers Adjustment Retraining Notification Act) to, or enter into or amend any employment or severance agreement with, any director, officer or key employee or pay any benefit not required by any existing plan or arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units not permitted under Section 5.04(d)(i)(w)) or establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable Law; provided, however, that are disclosed nothing in this Agreement will be deemed to prohibit the Company Disclosure Memorandum); orpayment of benefits as they become payable;
(cb) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stock, except for dividends by a wholly-owned subsidiary of Company Capital Stock; orto Company or another wholly-owned subsidiary of Company;
(di) except redeem, purchase or otherwise acquire any shares of its or any of its subsidiaries' capital stock or any securities or obligations convertible into or exchangeable for this Agreementany shares of its or its subsidiaries' capital stock, or pursuant any options, warrants or conversion or other rights to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into acquire any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock its or its subsidiaries' capital stock or any other Equity Rightsuch securities or obligations; (ii) effect any reorganization or recapitalization; or (eiii) adjust, split, combine or reclassify any of its or its subsidiaries' capital stock of Company or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of Company Capital Stockits or its subsidiaries' capital stock;
(d) (i) issue, deliver, award, grant or sell, leaseor authorize or propose the issuance, mortgage delivery, award, grant or sale (including the grant of any Liens) of any shares of any class of its or its subsidiaries' capital stock, any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options to acquire any such shares, except for (w) the issuance of stock options under Company's employee stock option plans in effect on the date hereof in the ordinary course and consistent with past practice; provided, that such options can not be exercised prior to the Effective Time; (x) the issuance of Company Common Stock upon the exercise of employee stock options and warrants outstanding on the date of this Agreement; and (y) the issuance of Company Common Stock upon conversion of all or any part of contingent payment obligations incurred in connection with acquisitions made prior to the date of this Agreement and disclosed on Schedule 4.03(b); and in each of the cases set forth in the foregoing clauses (w), (x) and (y), in accordance with their present terms; or (ii) amend or otherwise dispose modify the terms of any such rights, warrants, options, employee stock option plans or otherwise encumber contingent payment obligations the effect of which shall be to make such terms more favorable to the holders thereof;
(e) acquire or agree to acquire equity interests in or all or a portion of the assets of any Asset having a book value in excess business or person (by purchase, merger, consolidation or any other means), except for the purchasing of $10,000 other than assets from suppliers or vendors in the ordinary course of business for reasonable and adequate considerationconsistent with past practice;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or license to any Person other than Company or otherwise extenddispose of, amend or modify in any material respect any rights to material Intellectual Property portion of its assets, except for dispositions of inventories, equipment and other than assets in the ordinary course of business and consistent with past practice;
(including changing g) adopt or propose to adopt any domain names amendments to its charter or failing bylaws;
(h) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except under existing credit lines in the ordinary course of business consistent with past practice and provided that the aggregate amount of all outstanding indebtedness after giving effect to renew existing domain name registrations such incurrence in no event exceeds $53,000,000;
(i) take any action which would result in a failure to maintain the trading of Company Common Stock on NASDAQ;
(j) make any tax election or settle or compromise any income tax liability that could reasonably be expected to be material to Company and its subsidiaries taken as a timely basis), whole;
(k) make any material commitments or enter into grants agreements for capital expenditures or capital additions or betterments except as materially consistent with the budget for capital expenditures as of the date of this Agreement and consistent with past practices;
(l) make any material loans or advances to future Intellectual Property rightsany other person, other than to its wholly-owned subsidiaries and other than routine advances to employees or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business;
(m) except in the ordinary course of business, modify, amend, assign or terminate any material agreement, permit, concession, franchise, license or similar instrument to which Company or any of its subsidiaries is a party or waive any material rights of Company or any of its subsidiaries thereunder;
(n) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business and consistent with past practice or as may be required by pursuant to applicable LawLaw or generally accepted accounting principles; or
(o) agree in writing to do any of the foregoing.
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Parent Purchaser shall have been obtained, and except as otherwise expressly contemplated herein, the Company covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the following:
(a) amend the Articles articles of Incorporationincorporation, Bylaws bylaws or other governing instruments of Company, orany Company Entity;
(b) incur any additional debt obligation or other obligation for borrowed money (other than indebtedness of a Company Entity to another Company Entity) except for short-term borrowings with a maturity of one year or less in the ordinary course of the business of the Company Entities consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of any Company Entity of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandum); or;
(c) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plansEmployee Benefit Plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Companyany Company Entity, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; orthe Company's capital stock;
(d) except for this Agreement, or for the issuance of Company Preferred Stock to the Senior Lenders and CGW in connection with the Financing, or pursuant to the exercise of Company Equity Rights stock options outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d8.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Common Stock or any other capital stock of any Company Entity, or any stock appreciation rights, or any option, warrant, or other Equity Right; or ;
(e) adjust, split, combine or reclassify any capital stock of any Company Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Common Stock, or sell, lease, mortgage or otherwise dispose of or otherwise encumber (i) any shares of capital stock of any Company Subsidiary (unless any such shares of stock are sold or otherwise transferred to another Company Entity) or (ii) any Asset having a book value in excess of $10,000 other than in the ordinary course of business for reasonable and adequate consideration;
(f) except for purchases of U.S. Treasury securities or U.S. Government agency securities, which in either case have maturities of three years or less, purchase any securities or make any material investment, either by purchase of stock of securities, contributions to capital, Asset transfers, or transfer or license to purchase of any Assets, in any Person other than a wholly owned Company Subsidiary, or otherwise extendacquire direct or indirect control over any Person, amend or modify in any material respect any rights to material Intellectual Property other than in connection with (i) foreclosures in the ordinary course of business or (including changing ii) the creation of new wholly owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement;
(g) grant any domain names material increase in compensation or failing benefits to renew existing domain name registrations the employees or officers of any Company Entity, except in accordance with past practice or as disclosed in Section 8.2(g) of the Company Disclosure Memorandum or as required by Law or by the collective bargaining agreements currently under negotiation in the Xxxxxxx Xxxxxxxx xx Xxxxxxx between the trade unions and the employers' associations of the temporary staffing industry (the "German Collective Bargaining Agreements"); pay any severance or termination pay or any bonus other than pursuant to written policies or written Contracts in effect on a timely basisthe date of this Agreement and disclosed in Section 8.2(g) of the Company Disclosure Memorandum; enter into or amend any severance agreements with officers of any Company Entity; grant any material increase in fees or other increases in compensation or other benefits to directors of any Company Entity except in accordance with past practice or as disclosed in Section 8.2(g) of the Company Disclosure Memorandum or; except as provided in Section 3.2, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of any Equity Rights or restricted stock, or reprice Equity Rights granted under the Company Stock Plans or authorize cash payments in exchange for any Equity Rights;
(h) enter into or amend any employment Contract between any Company Entity and any Person (unless such amendment is required by Law or the German Collective Bargaining Agreements) that the Company Entity does not have the unconditional right to terminate without Liability (other than Liability for services already rendered), at any time on or enter into grants to future Intellectual Property rightsafter the Effective Time; or
(i) adopt any new employee benefit plan of any Company Entity or terminate or withdraw from, or make any material change in or to, any existing Employee Benefit Plans of any Company Entity other than any such change that is required by Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any such plan, or make any distributions from such employee benefit plans, except as required by Law, the terms of such plans or consistent with past practice;
(j) make any significant change in any Tax or accounting methods or systems of internal accounting controls, except as may be required by applicable Lawappropriate to conform to changes in Tax Laws or regulatory accounting requirements or GAAP;
(k) commence any Litigation other than in accordance with past practice or settle any Litigation involving any Liability of any Company Entity for material money damages or restrictions upon the operations of any Company Entity;
(l) except in the ordinary course of business, enter into, modify, amend or terminate any material Contract or waive, release, compromise or assign any material rights or claims; provided, however, in no event shall the Company amend the Credit Agreement in a manner, take any other action, or fail to take any action, (i) which would result in the Expiration Date (under and as defined in the Credit Agreement) or the maturity of the Credit Agreement occurring prior to July 31, 2003, (ii) which could cause the full and final payment of the Obligations (under and as defined in the Credit Agreement) to become due before such date or (iii) which would result in a Default under the Credit Agreement; or
(m) except in the ordinary course of business, abandon, cancel, sell or transfer any Owned Intellectual Property.
Appears in 1 contract
Samples: Merger Agreement (Ahl Services Inc)
NEGATIVE COVENANTS OF COMPANY. From the date of this Agreement ----------------------------- until the earlier of the Effective Time or the termination of this AgreementAgreement in accordance with the terms hereof, unless the prior written consent of Parent Acquiror shall have been obtained, and which shall not be unreasonably withheld or delayed, or except as otherwise expressly contemplated herein, Company covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the following:
(a) amend the Articles of Incorporation, Bylaws or other governing instruments of Company, any Company Entity; or
(b) except for short-term borrowings with a maturity of one year or less in the ordinary course of Company's business consistent with Company's past practicespractice, incur any indebtedness additional debt obligation or other obligation for borrowed moneymoney (other than (i) indebtedness of a Company Entity to another Company Entity and (ii) indebtedness under the Company Entities' existing credit facilities) or, assumeexcept in the ordinary course of Company's business consistent with Company's past practice, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of any Company Entity of any Lien or permit any such Lien to exist (other than in connection with Liens that are incurred in effect as of connection with the date hereof Company Entities' existing credit facilities or that are disclosed in Section 8.2(b) of the Company and Shareholder Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans)exchange, directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Companyany Company Entity, or declare or pay any dividend or make any other distribution in respect of the capital stock of any Company Capital StockEntity; or
(d) except for pursuant to this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other capital stock of any Company Entity, or any stock appreciation rights, or any option, warrant, or other Equity RightRight with respect to any capital stock of any Company Entity; or or
(e) adjust, split, combine or reclassify any capital stock of any Company Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage or otherwise dispose of or otherwise encumber (x) any shares of capital stock of any Company Subsidiary or (y) any Material Asset having a book value in excess of $10,000 any Company Entity other than in the ordinary course of Company's business for reasonable and adequate considerationconsideration or in connection with Liens incurred in the ordinary course of Company's business consistent with Company's past practice; or
(f) except for purchases of U.S. Treasury securities or U.S. Government agency securities, which in either case have maturities of three years or less, purchase any securities or make any Material investment, either by purchase of securities, contributions to capital, or transfer transfers or license to purchases of Assets constituting a business, in any Person other than a wholly owned Company Subsidiary, or otherwise extendacquire direct or indirect control over any Person, other than in connection with (i) foreclosures in the ordinary course of Company's business, or (ii) the creation of new wholly owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the employees, officers or directors of any Company Entity, except in accordance with past practice (including Company's ordinary and customary increases in employee salaries in connection with periodic employee evaluations) disclosed in Section 8.2(g) of the Company and Shareholder Disclosure Memorandum or as required by Law; pay any severance or termination pay or any bonus other than pursuant to written policies or written Contracts in effect on the date of this Agreement and disclosed in Section 8.2(g) of the Company and Shareholder Disclosure Memorandum; and enter into or amend any severance agreements with officers of any Company Entity; grant any Material increase in fees or modify other increases in compensation or other benefits to directors of any Company Entity except in accordance with Company's past practice disclosed in Section 8.2(g) of the Company and Shareholder Disclosure Memorandum; or voluntarily accelerate the vesting of any stock-based compensation or employee benefits or other Equity Rights; or
(h) enter into or amend any Material employment Contract between any Company Entity and any Person (unless such amendment is required by Law) that the Company Entity does not have the right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective Time assuming that Company does not violate any Laws which would make such a termination illegal; or
(i) adopt any new employee benefit plan of any Company Entity or terminate or withdraw from, or make any Material change in or to, any existing employee benefit plans of any Company Entity other than any such change that is required by Law or that, in the opinion of counsel to Company, is necessary or advisable to maintain the tax qualified status of any such plan, or make any distributions from such employee benefit plans, except as required by Law, the terms of such plans or consistent with Company's past practice; or
(j) make any significant change in any material respect any rights to material Intellectual Property Tax or accounting methods or systems of internal accounting controls; or
(k) other than in the ordinary course of business Company's business, consistent with Company's past practice, commence, which shall not include defending or raising cross- or counter-claims in connection with any defense of Litigation, any Litigation or settle any Litigation involving any Liability of any Company Entity for Material money damages or Material restrictions upon the operations of any Company Entity; or
(l) except in the ordinary course of Company's business, enter into, modify, amend or terminate any Material Company Contract (including changing any domain names loan Contract with an unpaid balance exceeding $25,000) or failing to renew existing domain name registrations on a timely basis)waive, release, compromise or enter into grants to future Intellectual Property rights, other than as may be required by applicable Lawassign any Material rights or claims under any Material Company Contract; or
(m) except in the ordinary course of Company's business consistent with Company's past practice, fail to pay any accounts payable to the Company's top twenty suppliers in accordance with the terms applicable to such suppliers set forth on Schedule 5.9(g) of the Company and Shareholder Disclosure Memorandum.
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. From Except as expressly contemplated by this Agreement or otherwise approved in writing by the parties, from the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementTime, unless the prior written consent of Parent Company shall have been obtainednot, and except the Shareholders shall not (whether in its, his or her capacity as otherwise expressly contemplated hereina Shareholder, director, officer, employee or agent of Company) and shall cause Company covenants and agrees that it will not do or agree or commit to to, do any of the following:
(a) (i) increase the compensation payable or to become payable to any officer of Company or to any employee other than a leased employee, (ii) grant any severance or termination pay, or enter into any severance agreement with, any officer or employee, (iii) enter into or amend any employment agreement with any officer or employee that would extend beyond the Articles of IncorporationEffective Time except on an at-will basis or (iv) establish, Bylaws adopt, enter into or other governing instruments of Companyamend any Employee Benefit Plan, orexcept as may be required to comply with applicable Law;
(b) except make any distribution in respect of the Company Shares;
(c) effect any reorganization or recapitalization;
(d) issue, deliver, award, grant or sell, or authorize the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims, pledges, limitations in voting rights, charges or other encumbrances) of, any shares, any securities convertible into or exercisable or exchangeable for short-term borrowings with any shares, or any rights, warrants or options to acquire any shares;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a maturity portion of one year the assets of, or less by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practices, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or impose, or suffer the imposition, on any Asset of Company of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof that are disclosed in the Company Disclosure Memorandumpractice); or;
(cf) repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of Company, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or
(d) except for this Agreement, or pursuant to the exercise of Company Equity Rights outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, or as disclosed in Section 7.2(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other Equity Right; or (e) adjust, split, combine or reclassify any capital stock of Company or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage exchange, mortgage, pledge, transfer or otherwise dispose of of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber dispose of, any Asset having a book value in excess of $10,000 other than its assets, except for dispositions in the ordinary course of business for reasonable and adequate considerationconsistent with past practice;
(g) directly or indirectly, through any representative or otherwise, enter into any agreement, discussion or negotiation with, or transfer provide information to, or license solicit, encourage, entertain or otherwise consider any inquiries or proposals from, any other entity or other Person with respect to (i) the possible acquisition of the assets and/or business of Company, or (ii) any Person business combination involving Company, whether by way of merger, consolidation, membership interest exchange or other acquisition or otherwise (other than Company or otherwise extend, amend or modify in any material respect any rights to material Intellectual Property other than sales of inventory in the ordinary course course). Company and the Shareholders will immediately notify IB3 regarding any contact between the Shareholders, Company and/or their representatives on the one hand and any other entity or other Person on the other hand regarding any such offer or proposal or any related inquiry;
(h) adopt any amendments to its Articles of business Incorporation or Bylaws;
(including changing i) (i) change any domain names or failing to renew existing domain name registrations on a timely basis)of its methods of accounting in effect at the date hereof, or enter into grants (ii) make or rescind any express or deemed election relating to future Intellectual Property rightsTaxes, other than settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of the federal income Tax returns for the taxable years ending December 31, 2006 and December 31, 2007, except in either case as may be required by applicable Law, the IRS or GAAP;
(j) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument;
(k) fail to renew any agreement favorable to Company which is used in the conduct of its business or compromise any obligation or amount owed to Company;
(l) incur any Expenses (as defined below) other than reasonable Expenses which are directly related to its, his or her participation in the transactions contemplated hereby; or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
