NEGATIVE COVENANTS OF COMPANY. Except as set forth in Section 6.2 of the Company Disclosure Schedule or as expressly contemplated by this Agreement or otherwise consented to in writing by Acquiror, during the period from the date of this Agreement to the purchase of a majority of the shares of Company Common Stock pursuant to the Offer, Company will not do, and will not permit any of its subsidiaries or authorize any of its officers, directors, employees, agents, attorneys, accountants, financial or other advisors, investment bankers or other representatives (collectively, the "Representatives") (where applicable) to do, and will use its reasonable best efforts not to allow any Representative to do, any of the following: (a) (i) increase the compensation payable to or to become payable to any member of the Board of Directors of Company or executive officer (which, for purposes of clarity, the parties acknowledge and agree shall mean Company's President, Chief Executive Officer, Senior Vice Presidents, Vice Presidents, Secretary and Treasurer) (except increases required pursuant to agreements disclosed on the Company Disclosure Schedule); (ii) pay bonuses to any member of the Board of Directors of Company or executive officer in excess of $1,000,000 in the aggregate for all directors and executive officers; (iii) pay bonuses (which for purposes of clarity, the parties acknowledge and agree does not include sales commissions payable in the ordinary course of business consistent with past practice) to any other employee of Company in excess of $25,000 in the aggregate for any individual employee or up to $500,000 in the aggregate for all employees (other than, in each case, payments required pursuant to agreements disclosed on the Company Disclosure Schedule); (iv) grant any severance or termination pay (other than pursuant to Company's or its subsidiaries' ordinary course severance practices or Contracts disclosed on the Company Disclosure Schedule) (provided that to the extent such payments are made for the release of potential employment related legal claims, such payments shall be considered to be made pursuant to Section 6.2(g) and not this Section 6.2(a)(iv)) to, or enter into or amend any employment or severance agreement with, any member of the Board of Directors of Company, officer or employee; (v) establish, adopt or enter into any Benefit Plan (other than ordinary course renewals of Benefit Plans) or (vi) except as may be required by applicable Law and except as set forth in Section 7.9 and for actions that are not inconsistent with the provisions of Section 7.9 of this Agreement, amend, or take any other actions (including, without limitation, the discretionary acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" or a "corporate transaction" (each as defined in the respective plans) of Company or a filing under Section 13(d) or 14(d) of the Exchange Act with respect to Company) with respect to any Stock Award, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 4.14 of this Agreement; (b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stock or other equity interests, except for dividends by a subsidiary of Company to Company or a wholly owned subsidiary of Company; (i) 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 any shares of its or its subsidiaries' capital stock, or any options, warrants or conversion or other rights to acquire any shares of its or such subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Awards in accordance with their terms or in connection with a repurchase of shares of a subsidiary's capital stock from an employee upon such employee terminating his/her employment with Company or any of its subsidiaries, but only to the extent all such repurchases do not exceed $10,000 in the aggregate); (ii) effect any reorganization or recapitalization or (iii) split, combine or reclassify any of its or any of its subsidiaries' capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its or its subsidiaries' capital stock; provided, however, that subclause (i) - (iii) above shall not apply to any of Company's wholly-owned subsidiaries. (i) except as set forth in Section 4.3(a) of this Agreement, issue (whether upon original issue or out of treasury), sell, grant, award or deliver, or propose the issuance, sale, grant, award or delivery (including the grant with respect thereto of any security interests, liens, pledges, limitations in voting rights, charges or other encumbrances) 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 (A) the issuance of shares upon the exercise, in accordance with their terms, of outstanding Stock Awards or (B) securities issued pursuant to the Rights Agreement); or (ii) amend or otherwise modify the terms of any such rights or warrants the effect of which shall be to make such terms more favorable to the holders thereof; (e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person or entity (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice and other than the merger of any wholly-owned subsidiary of Company with and into any other wholly-owned subsidiary of Company or Company); (f) sell, lease, exchange, mortgage, pledge, transfer, assign, convey or otherwise dispose of, any of its material assets or any material assets of any of its subsidiaries, except for dispositions of inventories and of assets in the ordinary course of business and consistent with past practice and for sale/leaseback transactions entered into by Company or any of its subsidiaries where the aggregate value of the assets sold and leased back does not exceed $1,500,000 in the aggregate. (g) release any third party from its obligations under any existing standstill agreement or any confidentiality, non-competition or other similar agreement or settle, (h) adopt any amendments to its Certificate of Incorporation or its Bylaws; (i) (A) change any of its accounting methods, principles or practices in effect at December 31, 1999 or (B) make or rescind any Tax election, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes (except where the amount of such settlements or compromises, individually or in the aggregate, does not exceed $300,000), 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 year ending December 31, 1999, except, in the case of clause (A) or clause (B), as may be required by Law or generally accepted accounting principles; (j) permit to exist as of the Scheduled Expiration Date (or, if the Offer is extended as permitted by this Agreement, as of any Extended Expiration Date) any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument or under any financing lease, or pursuant to a sale-and-leaseback transaction or otherwise in excess of the aggregate of (i) $12,250,000 plus (ii) an amount of up to $2,500,000 for capital expenditures made as permitted by Section 6.2(o), respecting which payments have not yet been made, plus (iii) an amount of up to $1,900,000 for capital expenditures made as permitted by Section 6.2(o), to the extent committed to in writing before the date of this Agreement, plus (iv) an amount of up to $1,500,000 for bonuses paid pursuant to Sections 6.2(a)(ii) and (iii), plus (v) amounts paid in settlement of disputes as permitted in Sections 6.2(g) and 6.2(i)(B), plus (vi) amounts paid by Company pursuant to Section 9.5(a), plus (vii) amounts paid by Company as permitted by Section 7.9(g) less (viii) amounts received by Company upon the issuance of shares as permitted by Section 6.2(d), in each case to the extent actually paid or received by Company after the date hereof. (k) incur or repay any liability or obligation (whether absolute or contingent) to any affiliated person or entity (other than Company or any of its wholly-owned subsidiaries or other than in accordance with the terms of Contracts existing on the date of this Agreement) or incur any material lien, claim or encumbrance, other than in the ordinary course of business consistent with past practice; (l) write-down or write-off the value of any material asset except for write-downs and write-offs of accounts receivable and inventory in the ordinary course of business consistent with past practice; (m) purchase any derivative securities except for purchases to hedge interest rate and currency exposure in the ordinary course of business;
Appears in 2 contracts
Samples: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
NEGATIVE COVENANTS OF COMPANY. Except as set forth in Section 6.2 of the Company Disclosure Schedule or as expressly contemplated by this Agreement or otherwise consented to in writing by Acquiror, during the period from From the date of this Agreement to until the purchase of a majority earlier of the shares Effective Time or the termination of Company Common Stock pursuant to this Agreement, unless the Offerprior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated herein or as required by applicable Law, Company covenants and agrees that it will not do or agree or commit to do, and will not or permit any of its subsidiaries the Company Subsidiaries to do or authorize any of its officers, directors, employees, agents, attorneys, accountants, financial agree or other advisors, investment bankers or other representatives (collectively, the "Representatives") (where applicable) to do, and will use its reasonable best efforts not to allow any Representative commit to do, any of the following:
(a) (i) increase amend the compensation payable to or to become payable to any member Articles/Certificate of the Board of Directors of Company or executive officer (whichIncorporation, for purposes of clarity, the parties acknowledge and agree shall mean Company's President, Chief Executive Officer, Senior Vice Presidents, Vice Presidents, Secretary and Treasurer) (except increases required pursuant to agreements disclosed on the Company Disclosure Schedule); (ii) pay bonuses to any member of the Board of Directors of Company or executive officer in excess of $1,000,000 in the aggregate for all directors and executive officers; (iii) pay bonuses (which for purposes of clarity, the parties acknowledge and agree does not include sales commissions payable in the ordinary course of business consistent with past practice) to any other employee of Company in excess of $25,000 in the aggregate for any individual employee or up to $500,000 in the aggregate for all employees (other than, in each case, payments required pursuant to agreements disclosed on the Company Disclosure Schedule); (iv) grant any severance or termination pay (other than pursuant to Company's or its subsidiaries' ordinary course severance practices or Contracts disclosed on the Company Disclosure Schedule) (provided that to the extent such payments are made for the release of potential employment related legal claims, such payments shall be considered to be made pursuant to Section 6.2(g) and not this Section 6.2(a)(iv)) to, or enter into or amend any employment or severance agreement with, any member of the Board of Directors of Company, officer or employee; (v) establish, adopt or enter into any Benefit Plan (other than ordinary course renewals of Benefit Plans) or (vi) except as may be required by applicable Law and except as set forth in Section 7.9 and for actions that are not inconsistent with the provisions of Section 7.9 of this Agreement, amend, or take any other actions (including, without limitation, the discretionary acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" or a "corporate transaction" (each as defined in the respective plans) of Company or a filing under Section 13(d) or 14(d) of the Exchange Act with respect to Company) with respect to any Stock Award, any of the Benefit Plans or any of the plans, programs, agreements, policies Bylaws or other arrangements described in Section 4.14 governing instruments of this Agreementany Company Entity;
(b) other than (i) trade payables and receivables in the Ordinary Course of Business, (ii) accounts payable relating to fees and expenses of Company’s legal counsel and other advisors relating to Company’s review of its historical stock option granting practices as described in Company’s Annual Report on Form 10-K as filed with the SEC for the fiscal year ended December 30, 2006, which in the aggregate do not exceed $415,000 as of the date of this Agreement, or (iii) accounts payable relating to expenses of Company, including but not limited to fees and expenses of the Company Financial Advisor, legal counsel and other advisors of Company, in connection with the transactions contemplated by this Agreement, which in the aggregate are not expected to exceed $500,000, incur any additional Indebtedness in excess of an aggregate of $100,000 (for the Company Entities on a consolidated basis), or impose, or suffer the imposition, on any Asset of any Company Entity (or Asset used primarily in the business of the Company Entities) of any material 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);
(c) repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock (or other equity securities) of any Company Entity, or declare or pay any dividend on, or make any other distribution in respect of Company’s capital stock (or other equity securities);
(d) issue, sell, pledge, encumber, authorize the issuance of, outstanding enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any shares of capital stock (or other equity interestssecurities) of any Company Entity, except for dividends by a subsidiary of Company to Company or a wholly owned subsidiary of Companyany stock appreciation rights, or any option, warrant, or other Equity Right;
(ie) redeemadjust, 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 any shares of its or its subsidiaries' capital stock, or any options, warrants or conversion or other rights to acquire any shares of its or such subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Awards in accordance with their terms or in connection with a repurchase of shares of a subsidiary's capital stock from an employee upon such employee terminating his/her employment with Company or any of its subsidiaries, but only to the extent all such repurchases do not exceed $10,000 in the aggregate); (ii) effect any reorganization or recapitalization or (iii) split, combine or reclassify any of its or any of its subsidiaries' capital stock of any Company Entity 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 its or its subsidiaries' Company capital stock; provided, howeveror sell, that subclause lease, mortgage or otherwise dispose of or otherwise encumber (i) - any shares of capital stock (iii) above shall not apply to any of Company's wholly-owned subsidiaries.
(i) except as set forth in Section 4.3(a) of this Agreement, issue (whether upon original issue or out of treasury), sell, grant, award or deliver, or propose the issuance, sale, grant, award or delivery (including the grant with respect thereto of any security interests, liens, pledges, limitations in voting rights, charges or other encumbrancesequity securities) 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 (A) the issuance of shares upon the exercise, in accordance with their terms, of outstanding Stock Awards or (B) securities issued pursuant to the Rights Agreement); Company Entity or (ii) amend or otherwise modify the terms any Asset of any such rights Company Entity (or warrants any other Asset used primarily in the effect of which shall be to make such terms more favorable to the holders thereof;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion business of the assets ofCompany Entities), or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person or entity (other than the purchase of assets from suppliers or vendors in the ordinary course Ordinary Course of business and consistent Business or with past practice and other than the merger of any wholly-owned subsidiary of Company with and into any other wholly-owned subsidiary of Company or Company)an aggregate value not to exceed $50,000;
(f) sellexcept for purchases of U.S. Treasury securities or U.S. Government agency securities, leasewhich in either case have maturities of sixty (60) days or less, exchangepurchase any securities or make any investment, mortgageeither by purchase of stock or other securities, pledgecontributions to capital, transferAsset transfers, assignor purchase of any Assets, convey in any Person other than a wholly owned Company Subsidiary disclosed in the Company Disclosure Memorandum, or otherwise dispose of, acquire direct or indirect control over any of its material assets or any material assets of any of its subsidiaries, except for dispositions of inventories and of assets in the ordinary course of business and consistent with past practice and for sale/leaseback transactions entered into by Company or any of its subsidiaries where the aggregate value of the assets sold and leased back does not exceed $1,500,000 in the aggregate.Person;
(g) release grant any third party from its obligations under increase in compensation or benefits or advance money or make loans to the employees, officers or directors of any existing standstill agreement Company Entity, except as required by Law; pay any severance, change in control or termination pay or any confidentiality, non-competition bonus other than pursuant to written policies or other similar agreement or settle,
(h) adopt any amendments to its Certificate of Incorporation or its Bylaws;
(i) (A) change any of its accounting methods, principles or practices written Contracts in effect at December 31, 1999 or (B) make or rescind any Tax election, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes (except where the amount of such settlements or compromises, individually or in the aggregate, does not exceed $300,000), 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 year ending December 31, 1999, except, in the case of clause (A) or clause (B), as may be required by Law or generally accepted accounting principles;
(j) permit to exist as of the Scheduled Expiration Date (or, if the Offer is extended as permitted by this Agreement, as of any Extended Expiration Date) any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument or under any financing lease, or pursuant to a sale-and-leaseback transaction or otherwise in excess of the aggregate of (i) $12,250,000 plus (ii) an amount of up to $2,500,000 for capital expenditures made as permitted by Section 6.2(o), respecting which payments have not yet been made, plus (iii) an amount of up to $1,900,000 for capital expenditures made as permitted by Section 6.2(o), to the extent committed to in writing before the date of this Agreement, plus (iv) an amount of up to $1,500,000 for bonuses paid pursuant to Sections 6.2(a)(ii) and (iii), plus (v) amounts paid in settlement of disputes as permitted in Sections 6.2(g) and 6.2(i)(B), plus (vi) amounts paid by Company pursuant to Section 9.5(a), plus (vii) amounts paid by Company as permitted by Section 7.9(g) less (viii) amounts received by Company upon the issuance of shares as permitted by Section 6.2(d), in each case to the extent actually paid or received by Company after the date hereof.
(k) incur or repay any liability or obligation (whether absolute or contingent) to any affiliated person or entity (other than Company or any of its wholly-owned subsidiaries or other than in accordance with the terms of Contracts existing on the date of this Agreement; enter into or amend any severance agreements or change in control agreements with directors, officers or other employees of any Company Entity; grant any increase in fees or other increases in compensation or other benefits to directors of any Company Entity or 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 Plan or authorize cash payments in exchange for any Equity Rights;
(h) enter into or incur amend any material lien, claim or encumbrance, employment Contract between any Company Entity and any Person having compensation thereunder in excess of $60,000 per year (unless such amendment is required by Law) that the Company Entity does not have the unconditional right to terminate without Liability (other than Liability for services rendered prior to termination) at any time on or after the Effective Time;
(i) adopt any new Employee Benefit Plan of any Company Entity or terminate or withdraw from, or make any 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 ordinary course opinion of business 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;
(lj) write-down make any change in any Tax or write-off the value accounting methods or systems of internal accounting controls, except as may be required to conform to changes in Tax Laws or regulatory accounting requirements or GAAP;
(k) commence any material asset except for write-downs and write-offs of accounts receivable and inventory Litigation other than in the ordinary course of business consistent 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 (other than any claim or action by the Company to enforce its rights under this Agreement);
(l) enter into, modify, amend or terminate any material Contract or waive, release, compromise or assign any material rights or claims;
(m) purchase enter into any derivative securities except Contract or amend or modify any existing Contract with an Affiliate of any Company Entity, or engage in any new transaction with any Affiliate of a Company Entity;
(n) make any capital expenditures or commitments for purchases additions to hedge interest rate and currency exposure plant, property or equipment constituting capital assets in excess of an aggregate of $100,000 for any given calendar month;
(o) make any material change in the ordinary course lines of businessbusiness in which Company participates or is engaged or, except with respect to the Option Agreement, dated April 15, 2005, as amended to date, set forth in Section 5.15 of the Company Disclosure Memorandum, exercise any option to acquire any Real Property;
(p) enter into any material partnership arrangements, Franchise Agreements, joint development agreements or strategic alliances;
(q) transfer or license to any Person or otherwise extend, amend or modify in any material respect any rights to its Intellectual Property (including the Company Software), or enter into grants to transfer or license to any Person future Intellectual Property rights, except in the usual, regular and Ordinary Course of Business;
(r) adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;
(s) hire any employee or engage any independent contractor with an annual compensation level in excess of $60,000;
(t) permit any Company Entity to become a party to or remain a party to any Tax sharing agreement or similar Contract with respect to Taxes of an affiliated group within the meaning of Section 1504(a) of the Internal Revenue Code of which any Company Entity is a member, such that, after the Closing Date, any Company Entity will have an obligation for any past, present or future taxable period with respect to Taxes of any Person other than a Company Entity; (u) sell, transfer, dispose, abandon or otherwise encumber any material Intellectual Property of any Company Entity;
(v) permit any loan or extension of credit from any Company Entity to any director or officer of any Company Entity to remain outstanding after the Closing Date to the extent that Parent would be prohibited from making such loan or extension of credit to such director or officer under Section 13(k) of the Exchange Act;
(w) enter into any transaction or take any other action that would reasonably be expected to prevent or materially delay the completion of the Merger;
(x) take or agree or commit to take any action that would reasonably be likely to result in any of the conditions set forth in Section 9.2 not being satisfied;
(y) fail to timely file any SEC Document required to be filed by the Company; or
(z) enter into, terminate (or consent to the termination of), renew, extend, amend, modify, alter or otherwise change any Franchise Agreement or any Contract with a supplier to the franchise system, or undertake the offer and/or sale of franchises anywhere or operate the Funds except in compliance with the Franchise Agreements and UFOCs, provided that the Company has properly amended its applicable UFOC in accordance with Applicable Law to disclose the transactions contemplated by this Agreement prior to any offer or sale of franchises.
Appears in 1 contract
NEGATIVE COVENANTS OF COMPANY. Except as set forth in Section 6.2 of the Company Disclosure Schedule or (i) as expressly contemplated by this Agreement Agreement, (ii) as set forth in Schedule 5.2, or (iii) as otherwise consented to in writing by AcquirorPurchaser (which consent, solely in the case of Sections 5.2(n) and 5.2(o), will not be unreasonably withheld, conditioned or delayed, and will be deemed granted if Company sends an electronic mail notice to Purchaser that references this Section 5.2 and Purchaser does not respond thereto within three (3) Business Days); provided, however, that if any consent by Purchaser is prohibited by applicable law as determined by Purchaser’s counsel, Purchaser will promptly notify Company and consent for the matter requested will not be required, during the period from Interim Period, the date of this Agreement to Sellers will cause the purchase of a majority of Company not to, and the shares of Company Common Stock pursuant to the Offer, Company will not donot, and will cause its Subsidiaries not permit any of its subsidiaries or authorize any of its officersto, directors, employees, agents, attorneys, accountants, financial or other advisors, investment bankers or other representatives (collectively, the "Representatives") (where applicable) to do, and will use its reasonable best efforts not to allow any Representative to do, do any of the following:
(a) (i) increase or announce any increase in the compensation payable to or to become payable to any member of the Board of Directors of Company its directors/managers, officers or executive officer employees (which, for purposes of clarity, the parties acknowledge and agree shall mean Company's President, Chief Executive Officer, Senior Vice Presidents, Vice Presidents, Secretary and Treasurer) (except increases required other than pursuant to agreements disclosed on an existing agreement or arrangement or in the Company Disclosure ScheduleOrdinary Course of Business); (ii) pay bonuses to any member of the Board of Directors of Company or executive officer in excess of $1,000,000 in the aggregate for all directors and executive officers; (iii) pay bonuses (which for purposes of clarity, the parties acknowledge and agree does not include sales commissions payable in the ordinary course of business consistent with past practice) to any other employee of Company in excess of $25,000 in the aggregate for any individual employee or up to $500,000 in the aggregate for all employees (other than, in each case, payments required pursuant to agreements disclosed on the Company Disclosure Schedule); (iv) grant any severance or termination pay (other than pursuant to Company's existing severance arrangements or its subsidiaries' ordinary course severance practices or Contracts disclosed policies as in effect on the Company Disclosure Schedule) (provided that to the extent such payments are made for the release date of potential employment related legal claims, such payments shall be considered to be made pursuant to Section 6.2(g) and not this Section 6.2(a)(iv)Agreement) to, or enter into or amend modify any employment employment, change-in-control or severance agreement with, any member of its directors, officers or employees (except with respect to agreements related to the Closing Bonus Payments provided to Purchaser prior to the date of this Agreement); or (iii) except with respect to the termination of the Board of Directors of Company, officer or employee; (v) establishManagement Plan contemplated hereunder, adopt or enter into amend any Benefit Plan (other than ordinary course renewals of Benefit Plans) Plan, policy or (vi) arrangement, in each case except as may be required by applicable Law and except as set forth in Section 7.9 and for actions that are not inconsistent with the provisions of Section 7.9 of this Agreement, amend, or take any other actions (including, without limitation, the discretionary acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" or a "corporate transaction" (each as defined in the respective plans) of Company or a filing under Section 13(d) or 14(d) of the Exchange Act with respect to Company) with respect to any Stock Award, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 4.14 of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stock or other equity interests, except for dividends by a subsidiary of Company to Company or a wholly owned subsidiary of Company;Law.
(i) redeemExcept with respect to the Redeemed Units and the Class B Xxxxx, purchase xxxxxx, xxxxxxxxxx or otherwise acquire any shares of its or reacquire any of its subsidiaries' capital stock equity securities or any securities or obligations convertible into or exchangeable for any shares of its or its subsidiaries' capital stockequity securities, or any options, warrants or conversion or other rights to acquire any shares of its or such subsidiaries' capital stock equity securities or any such securities or obligations (except in connection with the exercise of outstanding Stock Awards in accordance with their terms or in connection with a repurchase of shares of a subsidiary's capital stock from an employee upon such employee terminating his/her employment with Company or any of its subsidiaries, but only to the extent all such repurchases do not exceed $10,000 in the aggregate)obligations; (ii) liquidate, dissolve or effect any reorganization or recapitalization recapitalization; or (iii) split, combine or reclassify any of its or any of its subsidiaries' capital stock equity securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of of, or in substitution for, shares of its or its subsidiaries' capital stock; provided, however, that subclause (i) - (iii) above shall not apply to any of Company's wholly-owned subsidiaries.equity securities;
(ic) except as set forth in Section 4.3(a) of this Agreementissue, issue (whether upon original issue pledge, deliver, award, grant or out of treasury), sell, grant, award or deliver, authorize or propose the issuance, salepledge, grantdelivery, award award, grant or delivery sale (including the grant with respect thereto of any security interests, liens, pledges, limitations in voting rights, charges or other encumbrances) of of, the Units or any other units or shares of any class of its or its subsidiaries' capital stocksecurities, any securities convertible into or exercisable or exchangeable for any such sharesequity, or any rights, warrants or options to acquire, any such shares (except for (A) the issuance of shares upon the exercise, in accordance with their terms, of outstanding Stock Awards or (B) securities issued pursuant to the Rights Agreement); or (ii) amend or otherwise modify the terms of any such rights or warrants the effect of which shall be to make such terms more favorable to the holders thereofequity;
(ed) (i) acquire or agree to acquire, by merging or consolidating merge or consolidate with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other person Person; (ii) enter into any joint venture, partnership or entity similar arrangement; or (other than iii) make or commit to make any investments in or any acquisition of the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice and other than the merger securities of any wholly-owned subsidiary other Person;
(e) propose or adopt any amendments to the Charter or Governing Documents of any Company with and into any other wholly-owned subsidiary of Company or Company)Party;
(f) make any material change in any of its methods of accounting or in any accounting policy, except as may be required by Law, the FAR or GAAP, or make any material reclassification of its assets or liabilities;
(g) make any capital expenditures, capital additions or capital improvements (or series of related capital expenditures, additions or improvements) other than (i) reasonable expenditures for emergency maintenance and repair, or (ii) expenditures in the Ordinary Course of Business;
(h) enter into any collective bargaining agreement;
(i) make or change any material Tax election, change any annual Tax accounting period, change any method of Tax accounting, enter into any closing agreement with respect to any Tax, settle any material amount of Tax claim or any assessment or surrender any right to claim a material Tax refund;
(j) pay, discharge or satisfy any material Claims, Liabilities or obligations except the payment, discharge or satisfaction of (i) liabilities or obligations in the Ordinary Course of Business consistent with past practice or in accordance with the terms thereof as in effect on the date hereof or (ii) Claims settled or compromised to the extent permitted by Section 5.2(k), or waive, release, grant or transfer any rights of material value or accelerate, terminate, modify or change in any material respect any Scheduled Contract or Government Contract required to be listed on Schedule 3.29(a), in each case, other than in the Ordinary Course of Business;
(k) amend, cancel, waive, settle or compromise any Claim, other than (i) Claims in an aggregate amount not in excess of Two Hundred Fifty Thousand Dollars ($250,000); provided, that such settlement documents related to any such settlement do not involve any material non-monetary obligations on the part of any Company Party or Purchaser;
(l) declare, set aside, or pay any dividend or make any distribution with respect to its equity securities (whether in cash or in kind), except for customary distributions for the purpose of the payment of Taxes on equity securities and the Pre-Closing Distribution;
(m) sell, lease, license exchange, mortgage, pledge, transfer, assign, convey transfer or otherwise dispose of, any of its material assets or any material assets of any of its subsidiaries, except for dispositions of inventories and of assets the Assets other than in the ordinary course Ordinary Course of business and consistent with past practice and for sale/leaseback transactions entered into by Company or any of its subsidiaries where the aggregate value of the assets sold and leased back does not exceed $1,500,000 in the aggregate.Business;
(gn) release enter into any third party from its obligations under any existing standstill Contract (or series of related Contracts) or Government Contract: (A) that is a teaming agreement or that includes any confidentialityconflict of interest (other than customary OCI or similar provisions), non-competition or other similar agreement or settle,
(h) adopt provision that would place any amendments to its Certificate of Incorporation material restriction on the parties with which the Company or its BylawsAffiliates may do business; (B) in the case of a task order, purchase order or modification to an existing Contract, which is reasonably expected to involve more than Two Hundred Fifty Thousand Dollars ($250,000) in revenues to or expenditures by the Company Parties; (C) in the case of any other new Government Contract, which are reasonably expected to involve more than Two Hundred Fifty Thousand Dollars ($250,000) in revenues to or expenditures by the Company or be for an indefinite delivery indefinite quantity Government Contract; (D) in the case of any Contract that is not a Government Contract, which is reasonably expected to involve more than One Hundred Thousand Dollars ($100,000) in revenues to, expenditures of or liabilities to the Company Parties; or (E) pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any products or technology of the Company Parties;
(io) submit any new Government Bid which, if accepted, would be expected to result in a loss to the Company Parties, or would result in a Government Contract with a backlog value in excess of Two Hundred Fifty Thousand Dollars (A$250,000);
(p) change issue, incur or guarantee any obligation for Indebtedness, or enter into any “keep well” or other agreement to maintain the financial condition of another Person or make any loans, or advances of borrowed money or capital contributions to, or equity investments in, any other Person, except in the Ordinary Course of Business under existing loan agreements;
(q) except for Permitted Liens, cause or permit any Lien to be imposed upon the Acquired Units or any of its accounting methodsAssets that are material, principles or practices in effect at December 31, 1999 or (B) make or rescind any Tax election, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes (except where the amount of such settlements or compromises, either individually or in the aggregate, does not exceed $300,000), or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in to the preparation of the federal income tax returns for the taxable year ending December 31, 1999, except, in the case of clause (A) or clause (B), as may be required by Law or generally accepted accounting principlesCompany Parties businesses;
(jr) permit to exist as of the Scheduled Expiration Date (or, if the Offer is extended as permitted by this Agreement, as grant any license or sublicense of any Extended Expiration Date) rights under or with respect to any obligation for borrowed money Intellectual Property that is material, either individually or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument or under any financing lease, or pursuant to a sale-and-leaseback transaction or otherwise in excess of the aggregate of (i) $12,250,000 plus (ii) an amount of up to $2,500,000 for capital expenditures made as permitted by Section 6.2(o), respecting which payments have not yet been made, plus (iii) an amount of up to $1,900,000 for capital expenditures made as permitted by Section 6.2(o)aggregate, to the extent committed businesses of the Company Parties; or
(s) take, or offer or propose to take, or agree to take in writing before the date of this Agreementor otherwise, plus (iv) an amount of up to $1,500,000 for bonuses paid pursuant to Sections 6.2(a)(ii) and (iii), plus (v) amounts paid in settlement of disputes as permitted in Sections 6.2(g) and 6.2(i)(B), plus (vi) amounts paid by Company pursuant to Section 9.5(a), plus (vii) amounts paid by Company as permitted by Section 7.9(g) less (viii) amounts received by Company upon the issuance of shares as permitted by Section 6.2(d), in each case to the extent actually paid or received by Company after the date hereof.
(k) incur or repay any liability or obligation (whether absolute or contingent) to any affiliated person or entity (other than Company or any of its wholly-owned subsidiaries or other than the actions described in accordance with this Section 5.2 without the terms prior written consent of Contracts existing on the date of this Agreement) or incur any material lien, claim or encumbrance, other than in the ordinary course of business consistent with past practice;
(l) write-down or write-off the value of any material asset except for write-downs and write-offs of accounts receivable and inventory in the ordinary course of business consistent with past practice;
(m) purchase any derivative securities except for purchases to hedge interest rate and currency exposure in the ordinary course of business;Purchaser.
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