Negative Covenants of the Company. Except as expressly contemplated by this Agreement, otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure Schedule, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoing: (a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement; (b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share; (i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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; (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,
Appears in 1 contract
Samples: Merger Agreement (Affiliated Computer Services Inc)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or as set forth in Schedule 6.2 or otherwise consented to in writing by Parent (except in the case of clause (a) of this Section 6.2, such consent not to be unreasonably withheld or set forth in Schedule 5.02 of the Company Disclosure Scheduledelayed), from the date of this Agreement hereof until the Effective Time, the Company will not doshall not, and will shall cause each Company Subsidiary not permit any of its subsidiaries to doto, do any of the foregoingfollowing:
(a) (i) increase the compensation compensation, bonus or pension, welfare, severance or other benefits payable to or to become payable to any director of its Employees, Contractors that are natural persons or executive officerdirectors of the Company or any Company Subsidiary, unless such increase results from the operation of compensation arrangements except for (A) increases in effect prior salary, wages, bonuses or commissions payable or to become payable pursuant to the date hereofterms of Contracts listed on Schedule 3.12 or (B) increases in salary or wages for Employees who are not officers or executives, and increases in compensation to Contractors, in the ordinary course of business consistent with past practice (it being agreed that an increase of more than 5% per person shall be deemed to be outside the ordinary course of business); (ii) grant or pay any bonus, retention, severance or termination pay or other similar payment (other than (x) pursuant to the normal terms of severance policy agreements and arrangements or policies listed on Schedule 3.15) or (y) amounts not in excess of $4,500,000 in the aggregate or amounts approved in advance by Parent in writing that will, in each case, constitute Company Transaction Expenses that are paid prior to the Adjustment Time or its subsidiaries as in effect reflected on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Scheduleschedule delivered to Parent pursuant to Section 2.7) to, or enter into or amend any new employment or severance agreement independent contractor arrangement (other than the hiring of at will employees in the ordinary course of business consistent with past practice) with, any directorof its Employees, officer Contractors or employeedirectors of the Company or any Company Subsidiary; (iii) enhance, amend or terminate any Benefit Plan or Foreign Benefit Plan, or establish, adopt or enter into any employee benefit plan new plan, agreement or arrangement; other arrangement that would have constituted a Benefit Plan or (iv) Foreign Benefit Plan had it been in effect as of the date hereof, except as may be required by applicable law and actions that are not inconsistent with Law; (iv) take any action to accelerate the provisions of Section 6.08 of this Agreementvesting or payment, amend fund, or in any material respectother way secure the payment, of compensation and benefits under any Benefit Plan or take Foreign Benefit Plan; (v) grant any other actions with award in respect to, of any equity interest of the Benefit Plans Company or any Company Subsidiary; (vi) make or forgive any loans to any Employee or director of the plans, programs, agreements, policies Company or any Company Subsidiary; (vii) terminate any Employee other arrangements described than for cause (as determined by the Company in Section 3.10(dgood faith) or hire any employee or individual independent Contractor that is a natural person with total expected annual compensation in excess of this Agreement$100,000 other than in the ordinary course of business consistent with past practice; or (viii) enter into any collective bargaining agreement;
(b) declare issue, sell, grant, transfer or pay any dividend onotherwise dispose of, or make pledge or otherwise subject to any Encumbrance (other distribution in respect of, outstanding shares of capital stock, except for dividends by a wholly owned subsidiary of than Encumbrances that secure Indebtedness under the Company Credit Documents or that arise under applicable securities laws), any Equity Securities (other than Qualifying Non-U.S. Shares) of any Company Subsidiary other than to the Company or another wholly owned subsidiary any Wholly-Owned Company Subsidiary;
(c) acquire or agree to acquire, by merging or consolidating with, by purchasing Equity Securities or a material portion of the assets of, or by any other manner, any business or other Person or division of any other Person other than (i) the acquisition of equipment or services in the ordinary course of business consistent with past practice or (ii) the acquisition of other assets for an aggregate purchase price of up to $1,000,000;
(d) sell, lease, exchange, transfer, license, mortgage, pledge or impose a security interest or Encumbrance (other than any Permitted Encumbrance) on or otherwise dispose of, or agree to sell, lease, exchange, transfer, license, mortgage, pledge or impose a security interest or Encumbrance (other than any Permitted Encumbrance) on or otherwise dispose of any of its assets or Owned Real Property; provided that the foregoing shall not be deemed to restrict the sale, lease, exchange, transfer, license or other disposition of assets in the ordinary course of business consistent with past practice;
(e) adopt any amendments to its certificate of incorporation or bylaws or other Governing Instrument;
(f) (i) change any of its accounting principles, policies, practices or methods from those in effect at the Balance Sheet Date, or (ii) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy, including those 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 year ending December 31, 2008, except in each case as may be required by Law or GAAP (provided that the Company or any Company Subsidiary may settle any actual or threatened litigation or other dispute so long as (i) all monetary obligations incurred in such settlement are either discharged prior the Adjustment Time or would constitute current liabilities to be taken into account in determining the Closing Working Capital, and (ii) such settlement would not reasonably expected to have, and prior to the Closing Date does not have, any material and adverse effect on Parent and its Subsidiaries taken as a whole (other than by virtue of their ownership of the Company) or any material adverse effect on the Company and except for regular semi-annual dividends with respect the Company Subsidiaries taken as a whole;
(g) enter into, or become obligated under, any individual Contract, agreement, arrangement or commitment that would have been a Scheduled Contract if it had been entered into prior to the date of this Agreement or involving consideration in excess of $1,000,000 during any year (other than contracts, agreements or purchase orders entered into in the ordinary course of business consistent with past practice), or terminate or otherwise change, amend or modify any Scheduled Contract or Scheduled Government Contract in a manner that would have a material and adverse impact on the consummation of the transactions contemplated by this Agreement or would have any material and adverse effect on Parent and its Subsidiaries taken as a whole (other than by virtue of their ownership of the Company) or any material adverse effect on the Company Common Stock and the Company Subsidiaries taken as a whole;
(h) enter into any line of business or offer any services other than those in an amount not to exceed $0.11 per sharewhich the Company and the Company Subsidiaries are engaged or provide as of the date of this Agreement and those reasonably related thereto, or liquidate, dissolve or wind up;
(i) except as described declare, set aside or pay any dividend or distribution (whether payable in Schedule 3.03(b)(iicash, stock, property or otherwise) with respect to any Equity Securities of the Company Disclosure Schedule, 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 except for any shares of its such dividends or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary of the Company distributions payable solely in exchange for capital contributions cash or loans cash equivalents prior to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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 stockClosing;
(ij) except as described incur any Indebtedness to any Person other than the Company or any Wholly-Owned Company Subsidiary other than in Schedule 3.03(b)(ithe ordinary course of business consistent with past practice or pursuant to the Company Credit Documents; or
(k) authorize, agree in writing or otherwise or commit to do any of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,foregoing.
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) increase the compensation payable or pay bonuses to employees of the Company (excluding payments made pursuant to agreements disclosed in Section 2.10(j) -24- 30 of the Company Disclosure Schedule) other than in the ordinary course of business, (iii) grant any severance or termination pay (other than pursuant to the normal severance policy practices of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) except as set forth in Section 2.10(a) of the Company Disclosure Schedule, establish, adopt or enter into any employee benefit plan or arrangement; Benefit Plan or (ivv) except as may be required by applicable law and actions that are not inconsistent with Law or as set forth in Section 2.10(a) of the provisions of Section 6.08 of this AgreementCompany Disclosure Schedule, amend in any material respectamend, or take any other actions (including, without limitation, the acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company, with respect to, to any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d2.10(a) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(iiSection 2.03(c) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms)obligations; (ii) effect any reorganization or recapitalizationrecapitalization of the Company or any of its subsidiaries; or (iii) split, combine or reclassify any of its or 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;
(i) except as set forth in Section 2.03(a) hereof or as described in Schedule 3.03(b)(iSection 2.03(c) of the Company Disclosure Schedule, issueissue (whether upon original issue or out of treasury), deliversell, grant, award, grant deliver or limit the voting rights 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; (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which shall be to make such terms materially more favorable to the holders thereof; or (iii) take any action to accelerate the vesting of any of the stock options;
(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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice), except that the Company may continue negotiations with and, subject to the prior approval of Acquiror, consummate the acquisition of Explosivos Tecnologicos Argentinos, S.A. presently being negotiated;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for pledges or dispositions of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal relating to, or that may reasonably be expected to lead to, any Competing Transaction, or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to, or endorse, any Competing Transaction, or authorize or propose permit any of the issuanceofficers, deliverydirectors, awardemployees or agents of the Company or any of its subsidiaries or any agent, grant investment banker, financial advisor, attorney, accountant or sale (including other representative retained by the grant Company or any of the Company's subsidiaries to take any such action, and the Company shall promptly notify Acquiror of all relevant terms of any security interestssuch inquiries or proposals received by the Company or any of its subsidiaries or by any such officer, liensdirector, claims,employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to any of such matters and if such inquiry or proposal is in writing, the Company shall promptly deliver or cause to be delivered to Acquiror a copy of such inquiry or proposal;
(h) release any third party from its obligations under any existing standstill agreement or arrangement relating to a Competing Transaction or otherwise under any confidentiality or other similar agreement relating to information material to the Company or any of its subsidiaries;
(i) propose to adopt any amendments to its Articles of Incorporation or its Bylaws that would have an adverse effect on the consummation of the transactions contemplated by this Agreement;
(i) change any of its significant accounting policies or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any material 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 year ending July 31, 1997, except, in the case of clause (i) or clause (ii), as may be required by Law or GAAP;
(k) incur 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, whether pursuant to a sale-and-leaseback transaction or otherwise, except in the ordinary course of business consistent with past practice;
(l) enter into any material arrangement, agreement or contract with any third party (other than customers in the ordinary course of business); or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Owen H Dean Jr)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure Schedule, from From the date of this Agreement until the earlier of (i) the Effective TimeTime or (ii) the termination of this Agreement, unless the prior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated herein or as required by Law, the Company covenants and agrees that it will not do or agree or commit to do, and will not or permit any of its subsidiaries Subsidiaries to do or agree or commit to do, any of the foregoingfollowing:
(a) amend the certificate of incorporation, bylaws or other governing instruments of any Company Entity; or
(ib) increase the compensation payable to incur any additional debt obligation or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay other obligation for borrowed money (other than pursuant indebtedness of a Company Entity to another Company Entity) in excess of an aggregate of $1,000,000 (for the normal severance policy Company Entities on a consolidated basis) or impose, or suffer the imposition, on any material Asset of any Company Entity of any material Lien (other than Permitted Liens) or permit any such Lien (other than Permitted Liens) to exist (other than in connection with Liens in effect as of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements hereof that are disclosed in the Company Disclosure ScheduleMemorandum); or
(c) torepurchase, 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 any Company Entity; or
(d) except for this Agreement, or enter into pursuant to the exercise of Company Options or amend any employment the conversion of other convertible securities outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with revised pursuant to the provisions terms of Section 6.08 3.4 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described as disclosed in Section 3.10(d) of this Agreement;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii7.2(d) of the Company Disclosure ScheduleMemorandum, redeemissue, purchase sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise acquire permit to become outstanding, any additional shares of its Company Common Stock or any of its subsidiaries' other capital stock or of any securities or obligations convertible into or exchangeable for any shares of its or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)Entity, or any optionsstock appreciation rights, warrants or conversion any option, warrant or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations Equity Right; or
(except in connection with the exercise of outstanding Stock Options in accordance with their terms); (iie) effect any reorganization or recapitalization; or (iii) adjust, split, combine or reclassify any of its or 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 Company Common Stock, or its subsidiaries' capital stock;
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 material Asset other than in the ordinary course of business for reasonable and adequate consideration; 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 stock of 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, other than in connection with (i) foreclosures in the ordinary course of business or (ii) the creation of new wholly owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(g) except as described disclosed in Schedule 3.03(b)(iSection 7.2(g) of the Company Disclosure Schedule, issue, deliver, awardMemorandum, grant any increase in compensation or sellbenefits to the officers of the Company, except as required by Law; grant or pay any severance or termination pay or any bonus other than pursuant to past practices, written policies or written Contracts in effect on the date of this Agreement; enter into or amend any severance agreements with officers of the Company; grant any material increase in fees or other increases in compensation or other benefits to directors of the Company except in accordance with past practice; or
(h) except as disclosed in Section 7.2(g) of the Company Disclosure Memorandum, enter into or amend any employment Contract between any Company Entity and any Person having a base salary thereunder in excess of $200,000 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 already rendered or Liability under Company severance policies and practices), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Company Entity or terminate or withdraw from, or authorize make any material change in or propose to, any existing employee benefit plans of any Company Entity other than any such change that is required by Law or that, in the issuanceopinion of counsel, deliveryis necessary or advisable to maintain the tax qualified status of any such plan, awardor make any distributions from such employee benefit plans, grant except as required by Law, the terms of such plans or sale consistent with past practice; or
(j) make any 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 regulatory accounting requirements or GAAP, amend any Tax Return or settle any Tax proceeding or audit; or
(k) commence any Litigation other than in accordance with past practice, settle any Litigation involving any Liability of any Company Entity for money damages in excess of $100,000 or settle or commence any Litigation that places restrictions upon the operations of any Company Entity; or
(l) except in the ordinary course of business or as contemplated in Section 7.2(l) of the Company Disclosure Memorandum (x) enter into, modify, amend, renew or terminate any material Contract (including any loan Contract with an unpaid balance exceeding $1,000,000 and excluding the grant customer maintenance Contracts described in (y)); (y) modify, amend, renew or terminate any customer maintenance Contract (other than amendments or renewals that are on terms no less favorable to the Company Entities, measured on an individual and not on an aggregate basis) or (z) waive, release, compromise or assign any material rights or claims; or
(m) declare, set aside or pay any dividend or distribution with respect to its capital stock (whether in cash or in kind), or redeem, repurchase, or otherwise acquire any of its capital stock; or
(n) write up, write down or write off the book value of any security interestsassets, liensindividually or in the aggregate, claims,of the Company and the Subsidiaries taken as a whole, in excess of $500,000, except for depreciation and amortization and impairment charges in accordance with GAAP consistently applied; or
(o) take any action that is intended or would reasonably be expected to result in any of the conditions set forth in Section 9.1 or Section 9.2 not being satisfied; or
(p) transfer, assign, license, abandon, permit to lapse or otherwise dispose of (other than registrations of Trademarks identified as not in use in Section 5.11 of the Company Disclosure Memorandum) any Intellectual Property Rights other than in the ordinary course of business.
Appears in 1 contract
Negative Covenants of the Company. Except as expressly --------------------------------- contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure Schedule, VTEL from the date of this Agreement until the Effective Time, the Company will shall not do, and will shall not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofdirector; (ii) increase the compensation payable or pay bonuses to officers or employees of the Company or any of its subsidiaries other than in the ordinary course of business and consistent with past practices; (iii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company agreements or its subsidiaries as arrangements in effect on the date hereof and set forth in Section 5.03 of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ------------ Schedule) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) establish, adopt or enter into any employee benefit plan or arrangement; (v) make any loans to any stockholders, officers, directors or employees or make any change in its borrowing arrangements; or (ivvi) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respectamend, or take any other actions (including, without limitation, the waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company or a filing under Section 13(d) or 14(d) of the Exchange Act with respect to, to the Company) with respect to any of the Company Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;------- 3.10
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(ii) pursuant to the redemption of rights issued under the Company Disclosure ScheduleRights Plan, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); obligations, (ii) effect any reorganization or recapitalization; recapitalization of the Company or any of its subsidiaries, or (iii) split, combine or reclassify any of its or 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;
(i) issue (whether upon original issue or out of treasury), sell, grant, award, deliver or limit the voting rights 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 the issuance of shares upon the exercise of outstanding stock options or warrants in accordance with their terms and for the issuance of shares upon the conversion of outstanding shares of Series C Preferred Stock in accordance with the terms of the certificate of designation, in the form now existing, governing such preferred stock), or (ii) amend or otherwise modify the terms of any such rights, warrants or options or terms of the Series C Preferred Stock (except for such amendments and modifications relating to the terms of the Series C Preferred Stock expressly contemplated by this Agreement or by the Company Affiliate Letter in the form attached hereto as described Exhibit B executed and delivered concurrently with the --------- execution and delivery of this Agreement);
(e) acquire or agree to acquire (whether pursuant to a definitive agreement, a non-binding letter of intent or otherwise), by merging or consolidating with, by purchasing an equity interest in Schedule 3.03(b)(ior 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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of ("transfer"), or agree to sell, lease, exchange, mortgage, pledge, transfer -------- or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for transfers of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, directly or indirectly, any inquiries or the making of any proposal or offer relating to, or that may reasonably be expected to lead to, any Alternative Transaction (as defined below), or enter into discussions or negotiate with any Person or entity in furtherance of such inquiries or to obtain an Alternative Transaction, or disclose any nonpublic information relating to the Company or any of its subsidiaries to, or afford access to the properties, books or records of the Company Disclosure Scheduleor any of its subsidiaries, issueor agree to, deliveror endorse, award, grant or sellany Alternative Transaction, or authorize or propose permit any of the issuanceofficers, deliverydirectors, awardemployees or agents of the Company or any of its subsidiaries or any investment banker, grant financial advisor, attorney, accountant or sale other representative retained by the Company or any of the Company's subsidiaries (the "Representatives") to take any such action, and the Company shall notify VTEL --------------- within 24 hours of receipt by the Company or any of its subsidiaries, or by any of their Representatives, of all relevant terms of any such inquiries or proposals or requests for information relating to the Company or any of its subsidiaries or access to its properties, books or records so received by any of them relating to any Alternative Transaction and if such inquiry or proposal or request is in writing, the Company shall within 24 hours of receipt by the Company or any of its subsidiaries, or by any of their Representatives, deliver or cause to be delivered to VTEL a copy of such inquiry or proposal or request (or a complete summary thereof if it is not in writing) and the Company shall keep VTEL fully informed of the status and details of any such inquiry, proposal or request or any correspondence or communications related thereto and shall provide VTEL with five days' advance notice of any agreement to be entered into with any Person making such inquiry or proposal or request; provided, however, -------- ------- that at any time prior to the time that the Company's stockholders shall have voted to approve this Agreement, the Board of Directors of the Company may cause the Company to furnish information to, and may participate in discussions or negotiations with, any Person who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, with the Company or any of its subsidiaries or their respective Representatives) has submitted a written proposal to such Board of Directors relating to an Alternative Transaction that is financially superior to the transactions contemplated by this Agreement, if, and only to the extent that, (i) the Company's Board of Directors shall have concluded in good faith, after considering applicable provisions of state law, on the basis of a written opinion of independent outside counsel of nationally recognized reputation, that such action is necessary to prevent the Company's Board of Directors from violating its fiduciary duties to the Company's stockholders under applicable law, (ii) if such Alternative Transaction is an all cash or substantially all cash offer, such Alternative Transaction shall not be subject to any financing contingency (and such Person shall have cash or unrestricted securities on its latest balance sheet prior to submitting such written proposal equal to at least two times the amount of such all cash or substantially all cash offer or legally binding commitments for the financing of such Alternative Transaction, subject to no conditions to funding), and the Board of Directors of the Company shall have determined (based upon the advice of the Company's independent financial advisors or investment bankers of nationally recognized reputation) in the proper exercise of its fiduciary duties to the Company's stockholders that such Person is capable of consummating such Alternative Transaction on the terms proposed, (iii) the Board of Directors of the Company determines (based upon the advice of the Company's independent financial advisors or investment bankers of nationally recognized reputation) in the proper exercise of its fiduciary duties to the Company's stockholders that such Alternative Transaction provides greater value to the stockholders of the Company than the Merger, (iv) the agreement relating to the Alternative Transaction be on terms and subject to conditions no less restrictive than the provisions contained herein, (v) such Person enters into a Confidentiality and Standstill Agreement on terms substantially similar to and no less restrictive to such Person than the Confidentiality and Standstill Agreement entered into between the Company and VTEL referred to in Section ------- 5.05(d) hereof, and (vi) the Company may not furnish any information to such ------- Person if it has not prior to the date thereof notified VTEL in writing of its intent to furnish information to such person (specifying the nature and identity of the information to be so furnished) and provided the same information concurrently to VTEL. For purposes of this Agreement, "Alternative Transaction" ----------------------- shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its subsidiaries: (i) any purchase, lease, exchange, transfer or other acquisition or assumption of all or a material portion of the assets of the Company and its subsidiaries, taken as a whole; (ii) any merger, consolidation, share exchange, business combination or similar transaction involving the Company or any of its subsidiaries; or (iii) a purchase or other acquisition (including by way of merger, consolidation, share exchange or otherwise) of securities representing 20% or more of the grant outstanding voting of the Company;
(h) release any third party from its obligations under any standstill agreement or arrangement relating to an Alternative Transaction or otherwise under any confidentiality or other similar agreement relating to information material to the Company or any of its subsidiaries, unless the Company's Board of Directors shall have concluded in good faith, after considering applicable provisions of state law, on the basis of a written opinion of independent outside counsel of nationally recognized reputation that such action is necessary to prevent the Company's Board of Directors from violating its fiduciary duties to its stockholders under applicable law; provided, however, notwithstanding the foregoing, the Company shall not release any third party from its obligations under any standstill agreement or arrangement relating to an Alternative Transaction or otherwise under any such confidentiality or similar agreement unless the Company shall simultaneously release VTEL from its obligations and restrictions under the Confidentiality and Standstill Agreement referred to in Section 5.05(d) hereof; and further, provided, upon receipt by --------------- ------- -------- the Company of any security interestsunsolicited proposal for an Alternative Transaction, liensthe Company shall promptly release VTEL from its standstill obligations contained in the Confidentiality and Standstill Agreement referred to in Section 5.05(d) --------------- hereof;
(i) unless otherwise ordered by a court of competent jurisdiction, claims,take or permit any action to (w) cause any Person, other than VTEL, Merger Sub or any of VTEL's subsidiaries, to not be deemed an "Acquiring Person" pursuant to the Rights Plan; (x) except as contemplated by Section 5.01(h) hereof, to terminate, --------------- amend or modify the Rights Plan; (y) redeem any rights issued under the Rights Plan; or (z) cause the rights issuable under the Rights Plan to be redeemed or to become redeemable, nonexercisable, nondistributed or not triggered or triggerable pursuant to the terms of the Rights Plan, other than as required by this Agreement;
(j) adopt or propose to adopt any amendments to its Certificate of Incorporation or its Bylaws;
(k) (i) change any of its significant accounting policies or (ii) make or rescind any express or deemed election relating to Taxes, 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 year ended December 31, 1995 except, in the case of clause (i) or clause (ii), as may be required by Law or generally accepted accounting principles;
(l) incur 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, whether pursuant to a sale-and- leaseback transaction or otherwise or guarantee or endorse the obligations of any Person;
(m) aside from any actions contemplated by this Agreement, take or permit any action which could prevent the Merger from qualifying for pooling-of- interests accounting treatment in accordance with generally accepted accounting principles and all rules, regulations and policies of the SEC, and the Company will use its best efforts to prevent any of its officers or directors from taking or permitting such action;
(n) take or permit any action which could prevent the Merger from qualifying as a tax-free reorganization under Section 368 of the Code, and the Company will use its best efforts to prevent any of its officers or directors from taking or permitting any such action;
(o) take or permit any action which could adversely affect or delay the ability of either the Company or VTEL to obtain any necessary approvals of any Governmental Entities required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or the Stock Option Agreement;
(p) take any action which would make any representation or warranty contained in Article III of this Agreement untrue or incorrect in any material ----------- respect; or
(q) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Negative Covenants of the Company. AND EACH SELLER. Except as set ------------------------------------------------- forth on the "Negative Covenants Exception Schedule" attached hereto and except ------------------------------------- as expressly contemplated by this Agreement, prior to the Closing, unless the Purchaser otherwise consented to agrees in writing by Parent or set forth in Schedule 5.02 of writing, each Seller shall cause the Company Disclosure Schedule, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any each of its subsidiaries Subsidiaries to do, any of the foregoingnot:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in action that would require disclosure under Section 3.10(d) of this Agreement5.8;
(b) declare or pay other than in the Ordinary Course of Business, make any dividend onloans, enter into any transaction with any Insider or make or grant any increase in any employee's, officer's or director's compensation or make or grant any increase in any employee benefit plan, incentive arrangement or other distribution in respect of, outstanding shares benefit covering any of capital stock, except for dividends by a wholly owned subsidiary the employees of the Company or any of its Subsidiaries;
(c) establish or, except in accordance with the terms of the Plans disclosed herein or with past practice or as required by applicable law, contribute to any pension, retirement, profit sharing or stock bonus plan or multiemployer plan covering the employees of the Company or another wholly owned subsidiary any of its Subsidiaries;
(d) except as specifically contemplated by this Agreement, enter into any contract, agreement or transaction, other than in the Company Ordinary Course of Business and at arm's length with unaffiliated Persons;
(e) declare, pay, make or otherwise effectuate any dividends, distributions, redemptions, equity repurchases or other transactions involving the Company's or any of its Subsidiaries' capital stock or equity securities;
(f) except for regular semi-annual dividends with respect to (i) the Company Common Stock sale of used equipment in an aggregate amount not to exceed the amount identified on the "Company's Model Projections" --------------------------- attached as Exhibit F hereto during the applicable period, or (ii) in the --------- Ordinary Course of Business, sell, transfer, contribute, distribute, or otherwise dispose of any securities or assets of the Company or any of its Subsidiaries to any Person;
(g) except for capital expenditures in an aggregate amount not to exceed the amount identified on the Company's Model Projections during the --------------------------- applicable period, make any capital expenditures or commitments for capital expenditures that aggregate in excess of $0.11 per share50,000;
(h) other than in the Ordinary Course of Business and except for capital expenditures in an aggregate amount not to exceed the amount identified on the Company's Model Projections during the applicable period, incur any --------------------------- indebtedness for borrowed money other than indebtedness necessary to finance the Company's or its Subsidiaries' working capital needs;
(i) except as described in Schedule 3.03(b)(ii) agree to do any of the Company Disclosure Scheduleforegoing, redeem, purchase or otherwise acquire negotiate or have any shares of its or discussions with any Person with respect to 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 (the foregoing, other than any such acquisition directly from any wholly owned subsidiary in the Ordinary Course of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;
(i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,Business.
Appears in 1 contract
Negative Covenants of the Company. Except as set forth in the Company Disclosure Schedule, as required by applicable Law, as expressly contemplated by this Agreement, Agreement or as otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleParent, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation compensation, deferred compensation, or termination pay payable to or to become payable payable, to any director or director, executive officer, unless such increase results employee, agent or consultant of the Company or any of its subsidiaries except for increases in the ordinary course of business, including without limitation, increases resulting from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend in any material respect any employment or severance agreement with, any director, officer officer, employee, agent or employeeconsultant of the Company or any of its subsidiaries; (iii) establish, adopt or adopt, enter into or amend in any material respect any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing or other employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend or otherwise modify in any material respectrespect that would be materially adverse to the Company or any of its subsidiaries, or take any such other materially adverse actions with respect to, any of the Benefit Plans Company Material Contracts, any Company Employee Plan or any of the other material employee benefit plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stock, except for (i) dividends by a wholly owned subsidiary of the Company to the Company Company, or another wholly owned subsidiary of the Company, (ii) dividends by a non-wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company, another subsidiary of the Company Common Stock or any other equity holder of such subsidiary so long as such dividends are declared and paid on a pro rata basis in an amount not to exceed $0.11 per sharethe ordinary course of business consistent with past practices, and (iii) quarterly dividends of the Company in amounts consistent with past practices; provided, however, that the record dates of such dividends shall be as disclosed in the Company Disclosure Schedule;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Scheduleredeem, purchase or otherwise acquire, or agree to 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)stock, or any options, warrants or conversion or other rights (including any stock appreciation rights, phantom stock or similar rights) to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms)obligations; (ii) adopt a plan with respect to or effect any liquidation, dissolution, restructuring, reorganization or recapitalizationrecapitalization of the Company; or (iii) split, combine or reclassify any of its or its subsidiaries' the Company's 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' the Company's capital stock;
(d) (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interestsLiens or limitations on voting rights) of, liensany shares of any class of its or its subsidiaries' capital stock (including shares held in treasury), claims,any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options (including any stock appreciation rights, phantom stock or similar rights) to acquire any such shares, other than issuances, deliveries, awards, grants or sales of its capital stock pursuant to obligations outstanding as of the date of this Agreement; or (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which would be to make such terms materially less favorable to the Company or any of its subsidiaries;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, by forming a partnership or joint venture, 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 (collectively, "Acquisitions") except for any such Acquisitions (A) in which the fair market value of the total consideration paid by the Company and its subsidiaries does not exceed in the 39 aggregate $10,000,000 and (B) that do not present a material risk of making it more difficult to obtain any consents or approvals (including pursuant to the HSR Act) required to consummate the transactions contemplated by this Agreement;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its material assets or any material assets of any of its subsidiaries (including securities), except for dispositions of inventories and of assets in the ordinary course of business and consistent with past practice;
(g) release any third party from its obligations, or grant any consent, under any existing standstill provision relating to an Acquisition Proposal (as defined in Section 5.04(a)), or under any similar confidentiality or other agreement, or fail to fully enforce any such agreement;
(h) adopt or propose to adopt any amendments to its bylaws which would have an adverse impact on the consummation of the Merger and the other transactions contemplated by this Agreement or adopt or propose to adopt any amendments to its charter;
(i) incur any obligation for borrowed money or purchase money indebtedness (including as a guarantor or surety), whether or not evidenced by a note, bond, debenture or similar instrument if such incurrence would interfere with or make more difficult the consummation of the Merger or the other transactions contemplated hereby or increase the cost to Parent of consummating the Merger and such other transactions or make or incur any capital expenditure except in the ordinary course of business consistent with past practice;
(j) make any loan, advance or capital contribution to, or investment in, any person (other than by the Company to any of its wholly-owned subsidiaries or by any wholly-owned subsidiary of the Company to another wholly-owned subsidiary of the Company or to the Company);
(k) enter into any material arrangement, agreement or contract with any third party (other than customers in the ordinary course of business) that provides for an exclusive arrangement with that third party for a term of more than one year;
(l) enter into any arrangement, agreement or contract (i) that could, after the Effective Time, restrict Parent or any of its affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area except as otherwise may be agreed to by Parent in connection with the contemplated dispositions set forth in the Company Disclosure Schedule; or (ii) that would be a Company Material Contract had such contract been in existence on the date hereof;
(m) enter into, amend or extend any exclusive arrangement, agreement or contract for milk supply unless such arrangement, agreement or contract expires or may be terminated on or before December 31, 2001 without penalty;
(n) dispose of any part of its investment in White Wave, Inc., amend in any material respect the agreements with respect to such investment or waive any material rights relating thereto; or
(o) agree in writing to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Dean Foods Co)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoing:following: 34 29
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) increase the compensation payable or pay bonuses to employees of the Company (excluding payments made pursuant to agreements disclosed in Section 2.10(j) of the Company Disclosure Schedule) other than in the ordinary course of business, (iii) grant any severance or termination pay (other than pursuant to the normal severance policy practices of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) except as set forth in Section 2.10(a) of the Company Disclosure Schedule, establish, adopt or enter into any employee benefit plan or arrangement; Benefit Plan or (ivv) except as may be required by applicable law and actions that are not inconsistent with Law or as set forth in Section 2.10(a) of the provisions of Section 6.08 of this AgreementCompany Disclosure Schedule, amend in any material respectamend, or take any other actions (including, without limitation, the acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company, with respect to, to any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d2.10(a) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(iiSection 2.03(c) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms)obligations; (ii) effect any reorganization or recapitalizationrecapitalization of the Company or any of its subsidiaries; or (iii) split, combine or reclassify any of its or 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;
(i) except as set forth in Section 2.03(a) hereof or as described in Schedule 3.03(b)(iSection 2.03(c) of the Company Disclosure Schedule, issueissue (whether upon original issue or out of treasury), deliversell, grant, award, grant deliver or limit the voting rights 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; (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which shall be to make such terms materially more 35 30 favorable to the holders thereof; or (iii) take any action to accelerate the vesting of any of the stock options;
(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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice), except that the Company may continue negotiations with and, subject to the prior approval of Acquiror, consummate the acquisition of Explosivos Tecnologicos Argentinos, S.A. presently being negotiated;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for pledges or dispositions of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal relating to, or that may reasonably be expected to lead to, any Competing Transaction, or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to, or endorse, any Competing Transaction, or authorize or propose permit any of the issuanceofficers, deliverydirectors, awardemployees or agents of the Company or any of its subsidiaries or any agent, grant investment banker, financial advisor, attorney, accountant or sale (including other representative retained by the grant Company or any of the Company's subsidiaries to take any such action, and the Company shall promptly notify Acquiror of all relevant terms of any security interestssuch inquiries or proposals received by the Company or any of its subsidiaries or by any such officer, liensdirector, claims,employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to any of such matters and if such inquiry or proposal is in writing, the Company shall promptly deliver or cause to be delivered to Acquiror a copy of such inquiry or proposal;
(h) release any third party from its obligations under any existing standstill agreement or arrangement relating to a Competing Transaction or otherwise under any confidentiality or other similar agreement relating to information material to the Company or any of its subsidiaries;
(i) propose to adopt any amendments to its Articles of Incorporation or its Bylaws that would have an adverse effect on the consummation of the transactions contemplated by this Agreement; 36 31
(j) (i) change any of its significant accounting policies or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any material 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 year ending July 31, 1997, except, in the case of clause (i) or clause (ii), as may be required by Law or GAAP;
(k) incur 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, whether pursuant to a sale-and-leaseback transaction or otherwise, except in the ordinary course of business consistent with past practice;
(l) enter into any material arrangement, agreement or contract with any third party (other than customers in the ordinary course of business); or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Negative Covenants of the Company. Except as expressly contemplated by this AgreementAgreement and except as set forth in Schedule 6.2, or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror, from the date of this Agreement hereof until the Effective Time, the Company will not doshall not, and will shall cause each Company Subsidiary not permit any of its subsidiaries to doto, do any of the foregoing:
following: (a) (i) increase the compensation payable to or to become payable to any director of its directors, executive officers or executive officeremployees, unless such increase results from except for increases in salary, wages or bonuses payable or to become payable in the operation ordinary course of compensation arrangements in effect prior to the date hereofbusiness and consistent with past practice; (ii) grant any severance or termination pay 18
(other than pursuant i) change any of its methods of accounting in effect at January 1, 1997, or (ii) make or rescind any express or deemed election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes (except where the normal severance policy amount of such settlements or controversies, individually or in the aggregate, does not exceed Five Hundred Thousand Dollars ($500,000), or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of the Company or its subsidiaries as in effect on federal income tax returns for the date of this Agreement or any of the agreements or arrangements disclosed taxable year ending December 31, 1996, except, in the Company Disclosure Schedulecase of clause (i) toor clause (ii), or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law or generally accepted accounting principles; (i) incur any obligation for borrowed money, whether or not evidenced by a note, bond, debenture or similar instrument, other than (i) purchase money indebtedness not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate, (ii) indebtedness incurred in the ordinary course of business under the existing loan agreements described on Schedule 3.3 hereto, and actions that are (iii) capitalized leases not inconsistent with to exceed One Million Dollars ($1,000,000) in the provisions aggregate; 19
(j) without the written consent of Section 6.08 of this AgreementAcquiror (which consent shall not be unreasonably withheld, amend delayed or conditioned), enter into or modify in any material respectrespect any agreement which, if in effect as of the date hereof, would have been required to be disclosed on Schedule 3.12 as a Material Contract; or take any other actions with respect to, (k) agree in writing or otherwise to do any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;
(i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,foregoing.
Appears in 1 contract
Samples: Merger Agreement (Price Communications Wireless Inc)
Negative Covenants of the Company. Except with the prior written consent of Purchaser or as expressly contemplated otherwise specifically permitted by this Agreement, otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure Schedulewill not, from the date of this Agreement until to the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingClosing:
(a) make any amendment to its Articles of Incorporation or Bylaws, except to authorize an additional 198,029 shares of Series C Preferred Stock (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements for issuance upon exercise options as described in effect prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy Section 2.2 of the Company or its subsidiaries as in effect on the date of this Agreement or Disclosure Schedule);
(b) make any of the agreements or arrangements disclosed change in the Company Disclosure Schedule) tomethods used in allocating and charging costs, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law law, regulation or GAAP and actions that are not inconsistent with the provisions after written notice to Purchaser;
(c) except as provided in Section 5.9 and Section 5.10, and except to authorize an additional 198,029 shares of Section 6.08 Series C Preferred Stock (for issuance upon exercise of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements options as described in Section 3.10(d) 2.2 of this Agreementthe Disclosure Schedule), make any change in the number of shares of the capital stock issued and outstanding, or issue, reserve for issuance, grant, sell or authorize the issuance of any shares of its capital stock or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance or sale of or conversion into shares of its capital stock;
(bd) declare contract to create any obligation or pay Liability except in the ordinary course of business;
(e) increase the amount of the Long Term Debt;
(f) contract to create any dividend onmortgage, pledge, lien, security interest or encumbrance, restriction, or make charge of any kind (other distribution in respect ofthan statutory liens for which the obligations secured thereby shall not become delinquent);
(g) cancel any debts, outstanding shares waive any claims or rights of capital stockvalue or sell, transfer, or otherwise dispose of any of its Properties or assets, except for dividends by a wholly in the ordinary course of business;
(h) sell any real estate owned subsidiary as of the Company to the Company date of this Agreement or another wholly owned subsidiary of the Company and acquired thereafter except for regular semi-annual dividends with respect to fair market value in the Company Common Stock in an amount not to exceed $0.11 per shareordinary course of business;
(i) dispose of or permit to lapse any rights to the use of any Intellectual Property or dispose of or disclose to any Person other than its employees any material trade secret not theretofore a matter of public knowledge;
(j) except as described contemplated in Schedule 3.03(b)(iiSection 5.9 and Section 5.10, grant any increase in compensation or pay or agree to pay or accrue any bonus or like benefit to or for the credit of any director, officer, employee or other Person or enter into any employment, consulting or severance agreement or other agreement with any director, officer or employee, or adopt, amend or terminate any Benefit Plan or change or modify the period of vesting or retirement age for any participant of such a plan;
(k) declare, pay or set aside for payment any dividend or other distribution or payment in respect of the capital stock of Company;
(l) acquire the capital stock or other equity securities or interest of any Person or acquire all or substantially all of the assets of any Person;
(m) make any capital expenditure or a series of expenditures of a similar nature in excess of $25,000 in the aggregate;
(n) make any income tax or franchise tax election or settle or compromise any tax liability;
(o) except for negotiations and discussions between the parties hereto relating to the transactions contemplated by this Agreement or as otherwise permitted hereunder, enter into any transaction, or enter into, modify or amend any Contract or commitment other than in the ordinary course of business;
(p) increase the amount of any indebtedness owed by the Company to any stockholder of the Company Disclosure Schedule, redeem, purchase or otherwise acquire any shares Affiliate 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 (other than any such acquisition directly stockholder, or to the Company from any wholly owned subsidiary such stockholder or Affiliate of any such stockholder;
(q) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization or business combination of the Company;
(r) make any investments except in the ordinary course of business;
(s) sell or contract to sell any part of the Company's premises without the approval of the terms and conditions of such sale by Purchaser;
(t) change any fiscal year or the length thereof;
(u) enter into any agreement, understanding or commitment, written or oral, with any other Person which is in any manner inconsistent with the obligations of the Company in exchange for capital contributions or loans to such subsidiary), the Stockholders under this Agreement or any options, warrants related written agreement
(v) change the banking arrangements and signature authorities currently in effect or conversion grant any general or other rights to acquire any shares special power of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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 stockattorney;
(iw) except as knowingly waive any material right without receiving fair consideration; or
(x) agree to do any of the things described in Schedule 3.03(b)(iclauses (a) through (w) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,this Section 4.2.
Appears in 1 contract
Samples: Merger Agreement (Telescan Inc)
Negative Covenants of the Company. Except AND EACH SELLER. Prior to the Closing, unless the Purchaser otherwise agrees in writing, each Seller shall cause the Company to not:
(a) take any action that would require disclosure under Section 5.8;
(b) make any loans, enter into any transaction with any Insider or make or grant any increase in any employee's or officer's compensation or make or grant any increase in any employee benefit plan, incentive arrangement or other benefit covering any of the employees of the Company;
(c) establish or, except in accordance with past practice, contribute to any pension, retirement, profit sharing or stock bonus plan or multiemployer plan covering the employees of the Company;
(d) except as expressly specifically contemplated by this Agreement, enter into any contract, agreement or transaction, other than in the Ordinary Course of Business and at arm's length with unaffiliated Persons;
(e) declare, pay, make or otherwise consented to effectuate any dividends, distributions, redemptions, equity repurchases or other transactions involving the Company's capital stock or equity securities;
(f) engage in writing by Parent any activity other than in the Ordinary Course of Business which would accelerate the collection of its accounts or set forth in Schedule 5.02 notes receivable, delay the payment of its accounts payable, delay its capital expenditures, or reduce or otherwise restrict the amount of inventory on hand;
(g) sell, transfer, contribute, distribute, or otherwise dispose of any securities or assets of the Company Disclosure ScheduleCompany, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries or agree to do, do any of the foregoing:
(a) (i) increase the compensation payable to or to become payable , to any director Person, or executive officernegotiate or have any discussions with any Person with respect to any of the foregoing, unless such increase results from other than in the operation Ordinary Course of compensation arrangements in effect Business. Notwithstanding the foregoing, at or prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant Closing, the Company may transfer the Excluded Assets to the normal severance policy of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;
(i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,Sellers.
Appears in 1 contract
Negative Covenants of the Company. Except as set forth in SCHEDULE 6.2 or as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent Acquiror (which consent shall not be unreasonably withheld, delayed or set forth in Schedule 5.02 of the Company Disclosure Scheduleconditioned), from the date of this Agreement hereof until the Effective Time, Time the Company will not doshall not, and will shall cause each Company Subsidiary not permit any of its subsidiaries to doto, do any of the foregoingfollowing:
(a) (i) increase the periodic compensation payable to or to become payable to any director of its directors, executive officers or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofany key employees; (ii) grant any severance or termination pay (other than pursuant to the normal existing severance policy of the Company arrangements or its subsidiaries policies as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend modify any employment or severance agreement with, any directorof its directors, officer officers or employeeemployees; (iii) establish, adopt or enter into amend any employee benefit plan or arrangement; or (iv) , except as may be required by applicable law and actions that are not inconsistent law; or (iv) pay any cash bonuses; provided, however, without the prior written consent of Acquiror, the Company shall be permitted during each full fiscal quarter of the Company, beginning with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any fiscal quarter of the Benefit Plans Company beginning on December 31, 1999, between the date hereof and the Effective Time to pay cash bonuses and increase periodic compensation as described in clause (i) hereof as long as the aggregate amount of any such cash bonuses and the annualized effect of such compensation increases does not exceed $2,000,000 from the date hereof until Closing (except any retention bonuses previously disclosed to Acquiror) or (v) except as previously disclosed to Acquiror, make any loans to any officer, director or key employee of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;Company.
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockCompany Common Stock;
(c) (i) redeem, except for dividends by a wholly owned subsidiary repurchase or otherwise reacquire any shares of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 Company Common Stock or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary securities or obligations of the Company in exchange for capital contributions or loans to such subsidiary)Company, or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock Company Common Stock or any such other securities or obligations (except in connection with the exercise of outstanding Stock the Options and Director Options in accordance with their terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalizationrecapitalization or adopt a plan of complete or partial liquidation or dissolution; or (iii) split, combine or reclassify any shares of its or its subsidiaries' capital stock Company Common Stock 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 Company Common Stock or its subsidiaries' capital stockother securities;
(d) (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Scheduleissue, issuepledge, deliver, award, grant or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any such statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any security Encumbrances on) or registration of or filing of any registration statement covering, any shares of any class of its capital stock (including shares of Treasury Stock) or other securities (except in connection with the Options and Director Options), any securities convertible into or exercisable or exchangeable for any such shares or other securities, or any rights, warrants or options to acquire any such shares or other securities (except for the issuance of options to acquire shares of Company Common Stock: (A) to new employees of the Company that are hired after the date hereof; (B) to employees of the Company on a quarterly basis pursuant to the Company's performance-based equity incentive program; provided that the number of shares of Company Common Stock subject to options issued by the Company pursuant to this clause (B) shall not exceed 50,000 in the aggregate per any fiscal quarter of the Company beginning with the fiscal quarter of the Company beginning on December 31, 1999; and (C) to directors of the Company (in their capacity as directors) in connection with annual grants of stock options by the Company to the members of the Company's Board of Directors; provided that the number of shares of Company Common Stock subject to options issued by the Company pursuant to this clause (C) shall not exceed options covering 20,000 shares of Company Common Stock; provided, that any issuances of options by the Company pursuant to clauses (A), (B) and (C) shall only be to the extent such issuances are in the ordinary course of business and consistent with past practice); or (ii) amend or otherwise modify the terms of any such rights, warrants or options (including, without limitation, any Option or Director Option);
(e) (i) 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 any division (other than a Company Subsidiary) thereof (except that prior to the initial filing of the Registration Statement, the Company may enter into a transaction to acquire substantially all the equity securities or assets of an entity (a "Company Acquisition") so long as the aggregate consideration payable for such target entity in a Company Acquisition consists solely of cash in an amount not to exceed $10 million) or (ii) make or commit to make any investments or capital expenditures, other than investments or capital expenditures not exceeding in the aggregate $1,000,000 from the date hereof until Closing, and that are solely for purposes related to computer hardware and software, leaseholds, furniture and fixtures;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for dispositions in the ordinary course of business and consistent with past practice or sales that do not exceed $200,000 in the aggregate;
(g) propose or adopt any amendment to its certificate or articles of incorporation or its bylaws;
(h) (i) make any material change in any of its methods of accounting; or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, lawsuit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes (except where the amount of such settlements or controversies, individually or in the aggregate, does not exceed $100,000), 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 ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by applicable law or regulations or GAAP;
(i) incur or increase any obligation for borrowed money (except that the Credit Facility may be increased by no more than $10 million in general and an additional $10 million in the case that the Company undertakes a Company Acquisition), whether or not evidenced by a note, bond, debenture or similar instrument, or capitalized lease obligation or issue or sell any debt securities or any warrants or rights to acquire any debt securities of the Company or any Company Subsidiary, or any guarantee of any obligation for borrowed money, other than purchase money indebtedness not to exceed $500,000 in the aggregate, except in the ordinary course of business under existing loan agreements or capitalized leases, or prepay, before the scheduled maturity thereof, any of its long-term debt;
(j) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any Affiliate (except a Company Subsidiary) which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreement;
(k) except in the ordinary course of business, enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy or other instrument that has a value in excess of $50,000;
(l) adjust, split, combine or reclassify any capital stock;
(m) except for transactions in the ordinary course of business, terminate or amend in a material way, or waive any provision of, any material Company Contract; provided that this provision shall not prohibit the Company from entering into customer and service contracts in the ordinary course of business;
(n) settle any material claim, action or proceeding involving money damages, except any settlement in the ordinary course of business where the amount of such settlement individually does not exceed $25,000, and in the aggregate with all other such settlements, does not exceed $50,000;
(o) take any action that would, or would be reasonably likely to, prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP and the rules and regulations of the SEC;
(p) take any action that is intended or would reasonably be expected to result in any of the Company's representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, liens, claims,or in any of the conditions to the Merger set forth in Article VIII not being satisfied or in a violation of any provision of this Agreement; or
(q) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, as set forth in the Company Disclosure Schedule or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleParent, from the date of this Agreement until the Effective Time, the Company will not dodirectly or indirectly, and will not permit any of its subsidiaries Subsidiaries to dodirectly or indirectly, do any of the foregoingfollowing:
(a) (i) increase the compensation payable to to, or to become payable to to, any director director, executive officer or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofemployee; (ii) grant any severance or termination pay (other than pursuant to in accordance with the normal severance policy terms of the Company or its subsidiaries as in effect severance agreements set forth on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule, as the same may be amended pursuant to this Agreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; or (iii) establish, adopt adopt, enter into, amend or enter into otherwise increase, or accelerate the payment or vesting of the amounts payable under, any employee benefit plan or arrangement; or (iv) arrangement except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreementlaw;
(b) 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 Subsidiary of the Company to the Company or another wholly owned subsidiary Subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, redeem, purchase or otherwise acquire any shares of its or any of its subsidiariesSubsidiaries' capital stock or any securities or obligations convertible into or exchangeable or exercisable for any shares of its or its subsidiariesSubsidiaries' capital stock including, but not limited to, options, warrants and other rights to acquire securities (other than any such acquisition directly from any wholly owned subsidiary Subsidiary of the Company in exchange for capital contributions or loans to such subsidiarySubsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or its subsidiariesrespective 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 subsidiariesrespective Subsidiaries' capital stock;
(d) (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,, pledges or other encumbrances) of, any shares of any class of its or its Subsidiaries' capital stock (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any other shares, or any rights, warrants or options to acquire, any such shares (except for the issuance of shares upon the exercise of Company Stock Options or pursuant to Incentive Awards outstanding on the date of this Agreement in accordance with their terms or issuances by any Subsidiary of the Company to the Company or any other Subsidiary of the Company); (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which shall be to make such terms more favorable to the holders thereof (including, without limitation, declaring a "change of control" or similar event thereunder); or (iii) take any action to accelerate the vesting of any Company Stock Options;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest valued in excess of $1 million or portion of the assets (for a purchase price in excess of $1 million) of, or by any other manner, any corporation, partnership, association or other business, organization or division (other than a wholly owned Subsidiary) 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 practice) which are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(f) other than (i) dispositions or proposed dispositions set forth on the Company Disclosure Schedule, (ii) as may be necessary or required by law to consummate the transactions contemplated hereby or (iii) dispositions in the ordinary course of business consistent with past practice not to exceed $150,000 individually or $1 million in the aggregate, sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its material assets or any material assets of any of the Company's Significant Subsidiaries;
(g) propose or adopt any amendments to its Articles of Incorporation, as amended, or to its Bylaws;
(i) change any of its methods of accounting in effect at December 31, 1997 or (ii) make or rescind any express or deemed election relating to Taxes, 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 controversies, individually or in the aggregate, does not exceed $500,000), 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 ended December 31, 1997, except, in the case of clause (i) or clause (ii), as may be required by law or GAAP;
(i) (A) spend or commit to spend more than $2 million in the aggregate on the purchase of new or used equipment, supplies (including drill pipe and other capital expenditures not referred to in (ii) below) (provided that the Company shall inform Parent prior to committing to make capital expenditures in excess of $750,000 in the aggregate), except for (i) capital expenditures heretofore approved by the Company's Board of Directors and described in the Company Disclosure Schedule; and (ii) sustaining capital expenditures for Company Equipment and Vessels in the ordinary course of business consistent with past practice; or (B) except for draw downs on the existing working capital line of credit, incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except in the ordinary course of business consistent with past practice;
(j) enter into any contract, agreement or other arrangement that would have been required to be disclosed as a Company Contract had such contract, agreement or other arrangement been in effect on the date of this Agreement;
(k) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, (x) in the ordinary course of business and consistent with past practice, properly reflected or reserved against in, the consolidated financial statements (or the notes thereto) as of and for the fiscal year ended December 31, 1997 of the Company and its consolidated Subsidiaries, (y) incurred since December 31, 1997 in the ordinary course of business and consistent with past practice or (z) which are legally required to be paid, discharged or satisfied (provided that if such claims, liabilities or obligations referred to in this clause (z) are legally required to be paid and are also not otherwise payable in accordance with clauses (x) or (y) above, the Company will notify Parent in writing if such claims, liabilities or obligations exceed, individually or in the aggregate, $250,000 in value, reasonably in advance of their payment);
(i) incur or assume any long-term debt, or except in the ordinary course of business, incur or assume any short-term indebtedness in amounts not consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except in the ordinary course of business and consistent with past practice; (iii) make any loans, advances or capital contributions to, or investments in, any other person (other than to wholly owned Subsidiaries of the Company or customary loans or advances to employees in accordance with past practice or with respect to Pool International Argentina S. A. not in an amount in excess of $2 million); or (iv) enter into any material commitment or transaction (including, but not limited to, any borrowing, capital expenditure or purchase, sale or lease of assets);
(m) take or agree to take any action that would or is reasonably likely to result in any of the Company's representations and warranties set forth in this Agreement being untrue as of the Closing Date (unless such representations and warranties speak as of an earlier date, in which case as of such date) or in any of the conditions to the Merger not being satisfied; or
(n) enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing; provided, that, in the event the Company deems it necessary to take certain actions that would otherwise be proscribed by this Section 5.2, the Company shall consult with Parent and Parent shall consider in good faith the Company's request to take such actions.
Appears in 1 contract
Negative Covenants of the Company. Except as set forth in Schedule 6.2 or as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent Acquiror (which consent shall not be unreasonably withheld, delayed or set forth in Schedule 5.02 of the Company Disclosure Scheduleconditioned), from the date of this Agreement hereof until the Effective Time, Time the Company will not doshall not, and will shall cause each Company Subsidiary not permit any of its subsidiaries to doto, do any of the foregoingfollowing:
(a) (i) increase the periodic compensation payable to or to become payable to any director of its directors, executive officers or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofany key employees; (ii) grant any severance or termination pay (other than pursuant to the normal existing severance policy of the Company arrangements or its subsidiaries policies as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend modify any employment or severance agreement with, any directorof its directors, officer officers or employeeemployees; (iii) establish, adopt or enter into amend any employee benefit plan or arrangement; or (iv) , except as may be required by applicable law and actions that are not inconsistent law; or (iv) pay any cash bonuses; provided, however, without the prior written consent of Acquiror, the Company shall be permitted during each full fiscal quarter of the Company, beginning with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any fiscal quarter of the Benefit Plans Company beginning on December 31, 1999, between the date hereof and the Effective Time to pay cash bonuses and increase periodic compensation as described in clause (i) hereof as long as the aggregate amount of any such cash bonuses and the annualized effect of such compensation increases does not exceed $2,000,000 from the date hereof until Closing (except any retention bonuses previously disclosed to Acquiror) or (v) except as previously disclosed to Acquiror, make any loans to any officer, director or key employee of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;Company.
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockCompany Common Stock;
(c) (i) redeem, except for dividends by a wholly owned subsidiary repurchase or otherwise reacquire any shares of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 Company Common Stock or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary securities or obligations of the Company in exchange for capital contributions or loans to such subsidiary)Company, or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock Company Common Stock or any such other securities or obligations (except in connection with the exercise of outstanding Stock the Options and Director Options in accordance with their terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalizationrecapitalization or adopt a plan of complete or partial liquidation or dissolution; or (iii) split, combine or reclassify any shares of its or its subsidiaries' capital stock Company Common Stock 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 Company Common Stock or its subsidiaries' capital stockother securities;
(d) (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Scheduleissue, issuepledge, deliver, award, grant or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any such statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any security Encumbrances on) or registration of or filing of any registration statement covering, any shares of any class of its capital stock (including shares of Treasury Stock) or other securities (except in connection with the Options and Director Options), any securities convertible into or exercisable or exchangeable for any such shares or other securities, or any rights, warrants or options to acquire any such shares or other securities (except for the issuance of options to acquire shares of Company Common Stock: (A) to new employees of the Company that are hired after the date hereof; (B) to employees of the Company on a quarterly basis pursuant to the Company's performance-based equity incentive program; provided that the number of shares of Company Common Stock subject to options issued by the Company pursuant to this clause (B) shall not exceed 50,000 in the aggregate per any fiscal quarter of the Company beginning with the fiscal quarter of the Company beginning on December 31, 1999; and (C) to directors of the Company (in their capacity as directors) in connection with annual grants of stock options by the Company to the members of the Company's Board of Directors; provided that the number of shares of Company Common Stock subject to options issued by the Company pursuant to this clause (C) shall not exceed options covering 20,000 shares of Company Common Stock; provided, that any issuances of options by the Company pursuant to clauses (A), (B) and (C) shall only be to the extent such issuances are in the ordinary course of business and consistent with past practice); or (ii) amend or otherwise modify the terms of any such rights, warrants or options (including, without limitation, any Option or Director Option);
(e) (i) 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 any division (other than a Company Subsidiary) thereof (except that prior to the initial filing of the Registration Statement, the Company may enter into a transaction to acquire substantially all the equity securities or assets of an entity (a "Company Acquisition") so long as the aggregate consideration payable for such target entity in a Company Acquisition consists solely of cash in an amount not to exceed $10 million) or (ii) make or commit to make any investments or capital expenditures, other than investments or capital expenditures not exceeding in the aggregate $1,000,000 from the date hereof until Closing, and that are solely for purposes related to computer hardware and software, leaseholds, furniture and fixtures;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for dispositions in the ordinary course of business and consistent with past practice or sales that do not exceed $200,000 in the aggregate;
(g) propose or adopt any amendment to its certificate or articles of incorporation or its bylaws;
(i) make any material change in any of its methods of accounting; or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, lawsuit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes (except where the amount of such settlements or controversies, individually or in the aggregate, does not exceed $100,000), 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 ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by applicable law or regulations or GAAP;
(i) incur or increase any obligation for borrowed money (except that the Credit Facility may be increased by no more than $10 million in general and an additional $10 million in the case that the Company undertakes a Company Acquisition), whether or not evidenced by a note, bond, debenture or similar instrument, or capitalized lease obligation or issue or sell any debt securities or any warrants or rights to acquire any debt securities of the Company or any Company Subsidiary, or any guarantee of any obligation for borrowed money, other than purchase money indebtedness not to exceed $500,000 in the aggregate, except in the ordinary course of business under existing loan agreements or capitalized leases, or prepay, before the scheduled maturity thereof, any of its long-term debt;
(j) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any Affiliate (except a Company Subsidiary) which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreement;
(k) except in the ordinary course of business, enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy or other instrument that has a value in excess of $50,000;
(l) adjust, split, combine or reclassify any capital stock;
(m) except for transactions in the ordinary course of business, terminate or amend in a material way, or waive any provision of, any material Company Contract; provided that this provision shall not prohibit the Company from entering into customer and service contracts in the ordinary course of business;
(n) settle any material claim, action or proceeding involving money damages, except any settlement in the ordinary course of business where the amount of such settlement individually does not exceed $25,000, and in the aggregate with all other such settlements, does not exceed $50,000;
(o) take any action that would, or would be reasonably likely to, prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP and the rules and regulations of the SEC;
(p) take any action that is intended or would reasonably be expected to result in any of the Company's representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, liens, claims,or in any of the conditions to the Merger set forth in Article VIII not being satisfied or in a violation of any provision of this Agreement; or
(q) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Advanced Communication Systems Inc)
Negative Covenants of the Company. Except Notwithstanding Section 5.1, during the Interim Period, except (i) as expressly contemplated under or required by this Agreement, including with respect to the Reorganization, (ii) as set forth in Schedule 5.2, (iii) as otherwise consented to in writing by Parent the Purchaser (which consent will not be unreasonably withheld, conditioned or set forth delayed), or (iv) as necessary to ensure the Company’s compliance with applicable Laws (provided that the Company shall use its commercially reasonable efforts to consult in Schedule 5.02 good faith with the Purchaser prior to taking (or omitting to take) such action to ensure compliance, other than actions taken in the Ordinary Course of Business), the Company will not (and the Seller shall not, with respect to Sections 5.2(c), 5.2(d) and 5.2(f)) do any of the following:
(a) other than with respect to any amounts treated as Company Disclosure Schedule, from Transaction Expenses or as required by any Benefit Plan as in effect on the date of this Agreement until that was made available to the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoing:
(a) Purchaser: (i) materially increase the compensation payable to or to become payable to any director of its directors, officers or executive officer, unless such increase results from the operation of compensation arrangements in effect prior employees (other than pursuant to an existing agreement or arrangement that was made available to the date hereofPurchaser or in the Ordinary Course of Business for employees with base salaries that do not exceed $250,000); (ii) grant any severance or termination pay (other than pursuant to ordinary severance or termination pay consistent with the normal severance policy Ordinary Course of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleBusiness for employees with base salaries that do not exceed $250,000) to, or enter into or amend modify any employment employment, change-in-control or severance agreement with, any directorof its directors, officer officers or employeeemployees (in each case, other than (1) employment agreements and offer letters entered into with newly-hired employees on the Company’s standard form that do not include severance protections unless permitted by clause (ii) of this Section 5.2(a), and (2) the termination of employment agreements and offer letters with employees whose employment may be terminated pursuant to Section 5.2(b) below); or (iii) establishadopt, adopt terminate, or enter amend any Benefit Plan (in each case, other than (1) employment agreements and offer letters entered into any employee benefit plan with newly-hired employees on the Company’s standard form that do not include severance protections unless permitted by clause (ii) of this Section 5.2(a) and (2) the termination of employment agreements and offer letters with employees whose employment may be terminated pursuant to Section 5.2(b) below, and (3) severance agreements and arrangements providing severance or arrangement; or termination pay permitted by clause (ivii) of this Section 5.2(a)), in each case, except as may be required by applicable law and actions that are not inconsistent Law, as may be required to maintain the Tax-qualified status of such Benefit Plan or in connection with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreementan annual renewal;
(b) declare other than in the Ordinary Course of Business, (i) hire or pay terminate (other than for cause) any dividend onemployees with base salaries of $250,000 or more, or make (ii) terminate any other distribution in respect of, outstanding shares group of capital stock, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareemployees;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, redeem, purchase repurchase or otherwise acquire any shares of its or reacquire any of its subsidiaries' capital stock or any equity securities or obligations convertible into or exchangeable for any shares of its or its subsidiaries' capital stock (in each case, other than any such acquisition directly repurchases of equity securities from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except employees in connection with a termination of service on terms that do not impose any obligation on the exercise Company or the Purchaser as of outstanding Stock Options in accordance with their termsthe Closing or thereafter); (ii) , liquidate, dissolve or effect any reorganization or recapitalization; or (iiiii) split, combine or reclassify any of its or its subsidiaries' capital stock equity or issue or authorize or propose the issuance of any other of its equity securities (in each case, excluding Shares or Interests issued in respect ofof the exercise of options that are outstanding as of the Execution Date, including Seller Options that converted from Company Options in lieu the Pre-Closing Merger); (iii) declare, set aside or make any payment or distribution of property to the Company’s equity holders with respect to such equity holders’ equity securities, except as permitted in Section 5.1(y) and except for Tax distributions; or in substitution for(iv) adopt a plan of complete or partial liquidation, shares of its dissolution, merger, consolidation, restructuring, recapitalization or its subsidiaries' capital stockother reorganization;
(id) except as described in Schedule 3.03(b)(i) of the Company Disclosure Scheduleissue, issuepledge, deliver, award, grant grant, transfer, dispose of or sell, or authorize or propose the issuance, pledge, delivery, award, grant grant, transfer, disposal of or sale (including the grant of any security interestsencumbrances) of, liensor otherwise subject to any Lien (other than Permitted Liens), claims,any Shares or Interests, any other equity interests or capital stock of the Company, any securities convertible into or exercisable or exchangeable for any such Shares or Interests or other equity interests or capital stock, or any rights, warrants or options to acquire, any such Shares or Interests (in each case, excluding Shares or Interests issued in respect of the exercise of options that are outstanding as of the Execution Date, including Seller Options that converted from Company Options in the Pre-Closing Merger);
(e) (i) acquire or agree to acquire, or 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; (ii) enter into any joint venture or partnership; or (iii) make or commit to make any investments in any other Person;
(f) propose or adopt any amendments to the Charter or Governing Documents of the Company;
(g) change any annual accounting period or adopt or 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;
(h) make any acquisitions, capital expenditures, capital additions or capital improvements in excess of $500,000 in the aggregate, other than (i) expenditures for emergency maintenance and repair, or (ii) expenditures in the Ordinary Course of Business of the Company;
(i) recognize any labor union or enter into any CBA;
(j) make (other than consistent with past practice), change or revoke any material Tax election, change any annual Tax accounting period, change any method of Tax accounting, amend any Tax Return, file any income or other material Tax Returns that have been prepared in a manner that is inconsistent with past practice in any material respect unless otherwise required by applicable Law, agree to an extension or waiver of a statute of limitations period applicable to the assessment or determination of any material amount of Taxes or any Tax Return related thereto or enter into any closing agreement with respect to any material Tax, settle or compromise any material Tax claim or assessment, surrender any right to claim a material Tax refund, enter into any Tax allocation, Tax sharing, or Tax indemnity agreement (in each case, other than customary commercial agreements entered into in the Ordinary Course of Business the primary focus of which is not Taxes) or Tax receivable agreements, or fail to pay material Taxes when due;
(k) pay, discharge, forgive, waive, settle 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 of the Company or in accordance with the terms of a Contract as in effect on the Execution Date or entered into in the Ordinary Course of Business (and not in violation of this Section 5.2) during the Interim Period or (ii) Claims settled or compromised to the extent permitted by Section 5.2(m)), or waive, release, grant or transfer any rights of material value or modify or change in any materially adverse respect any material Permit, Material Contract, IP License required to be listed on Schedule 3.11(a), Insurance Policy required to be listed on Schedule 3.18, Lease, Government Vendor Subcontract, Teaming Agreement or Current Government Contract, in each case, other than in the Ordinary Course of Business of the Company;
(l) sell, lease, license, abandon, permit to expire or lapse or otherwise dispose of any Company IP, Intellectual Property licensed to the Company or any other intangible asset used in the business of the Company, other than non-exclusive licenses entered into in the Ordinary Course of Business;
(m) settle or compromise any Claim, other than Claims in an individual amount to be paid by the Company that do not exceed $500,000; provided, that such settlement documents related to any such settlement permitted hereby shall not include an admission of violation of Law or any admission of wrongdoing on the part of the Company or the Purchaser, involve any material non-monetary obligations on the part of the Company or the Purchaser, or include any injunctive relief against the Company or the Purchaser;
(n) subject any material properties or assets to any Lien, except for Permitted Liens or Liens that will be terminated at the Closing with no liability to the Company (except if the Closing Proceeds will be reduced by the full amount of such liability);
(o) other than in the Ordinary Course of Business, enter into any new agreement or Contract or other binding obligation of the Company (other than any Benefit Plan permitted to be entered into pursuant to Section 5.2(a) above) that would, if entered into prior to the Execution Date, be a Material Contract;
(p) sell, assign, lease, license or otherwise transfer any material tangible assets of the Company, other than in the Ordinary Course of Business;
(q) modify the cash management practices (including any delay or postponement of the payment of any accounts payable or any other liability or obligation, any agreement with any party to extend the payment date of any accounts payable or expenses, salaries, bonuses, or any other liability or obligation) or accounting practices of the Company with the purpose or intent to accelerate to earlier periods the collection of accounts or notes receivable that otherwise would be expected to occur in subsequent periods;
(r) make any charitable contributions in excess of $10,000 in the aggregate or make any political contributions;
(s) enter into any lease of real or personal property or any renewals thereof involving a term of more than one year or rental obligation exceeding $100,000 per year in any single case;
(t) permit the lapse of any material existing policy of insurance relating to the business or assets of the Company;
(u) incur any Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the Indebtedness of any other Person, or make any loans or advances, in each case, except in the Ordinary Course of Business; provided, that in no event shall the Company (i) incur, assume or guarantee, or (ii) make any voluntary repayment or prepayment of, any long-term Indebtedness for borrowed money, other than, in each of sub-clauses (i) and (ii), further borrowings and voluntary repayments or prepayments under its existing credit facilities that will be repaid and terminated at Closing; or
(v) take, or offer or propose to take, or agree to take in writing or otherwise, any of the actions described in this Section 5.2 without the prior written consent of the Purchaser. Notwithstanding the foregoing or anything herein to the contrary, if (i) during the Interim Period, the Company or the Purchaser have commenced any litigation against the other party seeking to terminate this Agreement that has not been withdrawn in writing; or (ii) the Company is permitted to terminate this Agreement because the Purchaser has violated its obligations to close under Section 8.1(b)(ii), then the Company and the Seller shall not be required to comply with their obligations under this Section 5.2 or under Section 5.1. The Purchaser acknowledges and agrees that: (i) nothing contained herein shall give the Purchaser or any of its Affiliates, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing, and (ii) prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Caci International Inc /De/)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure Schedule, QRI from the date of this Agreement until the Effective Time, the Company will shall not do, and will shall not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofdirector; (ii) increase the compensation payable or pay bonuses to officers or employees of the Company or any of its subsidiaries other than in the ordinary course of business and consistent with past practices; (iii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company agreements or its subsidiaries as arrangements in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedulehereof) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) establish, adopt or enter into any employee benefit plan or arrangement; (v) make any loans to any stockholders, officers, directors or employees or make any change in its borrowing arrangements; or (ivvi) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respectamend, or take any other actions (including, without limitation, the waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company or a filing under Section 13(d) or 14(d) of the Exchange Act with respect to, to the Company) with respect to any of the Company Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d3.10(a) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); obligations, (ii) effect any reorganization or recapitalization; recapitalization of the Company or any of its subsidiaries, or (iii) split, combine or reclassify any of its or 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 nothing in this Section 5.03 shall prohibit the merger of a wholly-owned, direct or indirect subsidiary of the Company with and into the Company;
(id) issue (whether upon original issue or out of treasury), sell, grant, award, deliver or limit the voting rights 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 the issuance of shares upon the exercise of outstanding stock options or warrants in accordance with their terms);
(e) except as described in Schedule 3.03(b)(i) for the merger of a wholly-owned, direct or indirect subsidiary of the Company Disclosure Schedulewith and into the Company, issueacquire or agree to acquire (whether pursuant to a definitive agreement, delivera non-binding letter of intent or otherwise), awardby merging or consolidating with, grant 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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of ("Transfer"), or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for Transfers of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance) any Alternative Transaction (as defined below), or enter into discussions or negotiate with any Person or entity in furtherance of an Alternative Transaction, or disclose any nonpublic information relating to the Company or any of its subsidiaries to, or afford access to the properties, books or records of the Company or any of its subsidiaries, or agree to, or endorse, any Alternative Transaction, or authorize or propose permit any of the issuanceofficers, deliverydirectors, awardemployees or agents of the Company or any of its subsidiaries or any investment banker, grant financial advisor, attorney, accountant or sale other representative retained by the Company or any of the Company's subsidiaries (the "Representatives") to take any such action, provided, however, that at any time prior to the time that the Company's stockholders shall have voted to approve this Agreement, the Special Committee of the Board of Directors of the Company may cause the Company to furnish information to, and may participate in discussions or negotiations with, any Person who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, with the Company or any of its subsidiaries or their respective Representatives) has submitted a written proposal to the Special Committee of the Board of Directors relating to an Alternative Transaction that the Special Committee of the Company's Board of Directors, in the exercise of its fiduciary duty after consideration of written advice from its legal and financial advisors, determines is more beneficial to the stockholders of the Company than the Merger. For purposes of this Agreement, "Alternative Transaction" shall mean any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its subsidiaries: (i) any purchase, lease, exchange, transfer or other acquisition or assumption of all or a material portion of the assets of the Company and its subsidiaries, taken as a whole; (ii) any merger, 43 consolidation, share exchange, business combination or similar transaction involving the Company or any of its subsidiaries; or (iii) a purchase or other acquisition (including by way of merger, consolidation, share exchange or otherwise) of securities representing 20% or more of the grant outstanding voting of any security interests, liens, claims,the Company.
Appears in 1 contract
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) increase the compensation payable or pay bonuses to employees of the Company (excluding payments made pursuant to agreements disclosed in Section 23.10(d) of the Company Disclosure Schedule) other than in the ordinary course of business, (iii) grant any severance or termination pay (other than pursuant to the normal severance policy practices of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) except as set forth in Section 2.10(d) of the Company Disclosure Schedule, establish, adopt or enter into any employee benefit plan or arrangement; arrangement or (ivv) except as may be required by applicable law and actions that are not inconsistent with or as set forth in Section 2.10(d) of the provisions of Section 6.08 of this AgreementCompany Disclosure Schedule, amend in any material respectamend, or take any other actions (including, without limitation, the acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company, with respect to, to any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d2.10(d) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(iiSection 2.03(c) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiaryto
(i) except as set forth in Section 2.03(a) hereof or as described in Section 2.03(c) of the Company Disclosure Schedule, issue (whether upon original issue or out of treasury), sell, grant, award, deliver or any options, warrants or conversion or other limit the voting rights to acquire of any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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 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; (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which shall be to make such terms materially more favorable to the holders thereof; or (iii) take any action to accelerate the vesting of any of the stock options;
(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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for pledges or dispositions of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal relating to, or that may reasonably be expected to lead to, any Competing Transaction, or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to, or endorse, any Competing Transaction, or authorize or permit any of the officers, directors, employees or agents of the Company or any of its subsidiaries or any agent, investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of the Company's subsidiaries to take any such action, and the Company shall promptly notify Acquiror of all relevant terms of any such inquiries or proposals received by the Company or any of its subsidiaries or by any such officer, director, employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to any of such matters and if such inquiry or proposal is in writing, the Company shall promptly deliver or cause to be delivered to Acquiror a copy of such inquiry or proposal;
(i) except as described in Schedule 3.03(b)(i) propose to adopt any amendments to its Articles of Incorporation or its Bylaws that would have an adverse effect on the consummation of the Company Disclosure Scheduletransactions contemplated by this Agreement;
(i) change any of its significant accounting policies or (ii) make or rescind any express or deemed election relating to Taxes, issuesettle or compromise any material claim, deliveraction, awardsuit, grant litigation, proceeding, arbitration, investigation, audit or sellcontroversy relating to Taxes, or authorize change any of its methods of reporting income or propose deductions for federal income tax purposes from those employed in the issuancepreparation of the federal income tax returns for the taxable year ending December 31, delivery1997, awardexcept, grant in the case of clause (i) or sale clause (including ii), as may be required by Law or generally accepted accounting principles;
(k) incur 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, whether pursuant to a sale-and-leaseback transaction or otherwise, except in the grant ordinary course of business consistent with past practice;
(l) enter into any security interestsmaterial arrangement, liens, claims,agreement or contract with any third party (other than customers in the ordinary course of business); or
(m) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Negative Covenants of the Company. Except The Company hereby covenants and agrees that, from the date hereof through and including the Closing Date, except (i) as expressly contemplated by this Agreement, (ii) as set forth in Schedule 5.2, (iii) in cases that would not, individually or in the aggregate, materially affect the Company’s ability to conduct the Business in the ordinary course of business consistent with past practice, or (iv) otherwise consented to in writing by Parent each Purchaser (which consent may be given or set forth withheld in Schedule 5.02 of the Company Disclosure Scheduleeach Purchaser’s sole discretion), from the date of this Agreement hereof until the Effective TimeClosing Date, the Company will not do, and will not permit any of its subsidiaries to do, do any of the foregoingfollowing:
(a) (i) increase the compensation or benefits payable to or to become payable or increase or accelerate the vesting of the benefits provided to any director current or executive former director, officer, unless such increase results from employee or consultant of the operation Company or any of compensation arrangements its Subsidiaries (each, a “Participant”), except for (A) increases required by Contract in effect prior to on the date hereof; hereof or (B) increases in salary or wages of employees of the Company or any of its Subsidiaries who are not directors, executive officers, presidents or senior vice presidents of the Company in the ordinary course of business and consistent with past practice, (ii) grant any severance change in control, severance, retention or termination pay (other than pursuant to the normal severance policy of the Company compensation or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule) tobenefits, or increase therein, or establish, adopt, enter into into, amend or amend terminate any employment or severance consulting agreement with, any directorParticipant, officer or employee; except pursuant to a Benefit Plan, (iii) establish, adopt adopt, enter into, amend, waive or enter into terminate any employee benefit plan or arrangement; or Benefit Plan except as required by Law, (iv) except as may be required by applicable law and actions that are not inconsistent with accelerate the provisions time of Section 6.08 payment or vesting of this Agreementany rights or benefits, amend or make any material determinations, under any Benefit Plan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of phantom stock awards), or (vi) take any action to fund or in any material respectother way secure the payment of compensation or benefits under any employee plan, agreement, contract or take any other actions arrangement or Benefit Plan; provided, however, the foregoing clauses (i) - (vi) shall not restrict the Company from entering into or making available to newly hired employees or to employees in the context of promotions, in each case in the ordinary course of business consistent with respect topast practice, any of the Benefit Plans or any of the plans, programs, agreements, policies benefits and compensation arrangements; provided, further, that in no event shall the amount of any obligation or other arrangements described liability of the Company, individually or in Section 3.10(dthe aggregate, with respect to (A) the grant of this Agreementphantom stock awards under the Phantom Stock Plan exceed $100,000, or (B) the award of bonuses payable to Participants for services rendered during the Company’s fiscal year ending December 31, 2009 exceed $1,950,000, as a result of the foregoing or otherwise;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, redeem, purchase repurchase or otherwise acquire reacquire 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)stock, or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); obligations, (ii) effect any reorganization or recapitalization; , or (iii) split, combine or reclassify any of its or its subsidiaries' capital stock 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;
(ic) except as described in Schedule 3.03(b)(i) of the Company Disclosure Scheduleissue, issuepledge, deliver, award, grant or sell, or authorize or propose the issuance, pledge, delivery, award, grant or sale (including the grant of any security interestsencumbrances) of, liensany shares of any class of its capital stock (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options to acquire, any such shares or any phantom stock, phantom stock rights, stock appreciation rights, stock based performance units, or other stock-based compensation awards;
(d) (i) acquire or agree to acquire, 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, for consideration, individually or in the aggregate, in excess of $10,000,000 or (ii) make or commit to make any investments other than short-term liquid investments or investments that will be liquidated prior to the Closing;
(e) surrender, sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its Assets except for dispositions of Assets that are in the ordinary course of business and consistent with past practice with a value, individually or in the aggregate, of less than $5,000,000;
(f) propose or adopt any amendments to its certificate of incorporation or its bylaws other than the Charter Amendment;
(g) make any change in any of its methods, principles or practices of accounting or make any material reclassification of Assets or liabilities, except as may be required by Law or GAAP;
(h) incur or guarantee any Indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, 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 or issue or sell any debt securities or warrants or other rights to acquire debt securities of the Company, except in the ordinary course of business consistent with past practice under existing loan agreements or capitalized leases;
(i) transfer to any Person any material rights to Company IP other than in the ordinary course of business consistent with past practice;
(j) create or incur any Liens on the Assets or the Shares except for Permitted Liens and Liens securing purchase money Indebtedness for vehicles and equipment in the ordinary course of business;
(k) enter into any operating lease with an aggregate value in excess of $2,000,000;
(l) make any capital expenditures, capital additions or capital improvements other than in accordance with the 2010 Budget or otherwise in the ordinary course of business;
(m) other than revenue-generating Contracts, enter into or amend any Lease, Contract, commitment, understanding or other arrangement in each case involving annual expenditures or liabilities in excess of $2,000,000 or which is not cancelable within 12 months without penalty, cost or liability or which is otherwise material to the Company; provided, that all such permitted new Contracts or Leases will be deemed to be included within the term “Contracts” as defined in Schedule 1 hereof;
(n) enter into any collective bargaining agreement, except as required by Law or in the ordinary course of business;
(o) make or change any 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 Tax claim or any assessment or surrender any right to claim a Tax refund;
(p) pay, discharge or satisfy any material claims,, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), 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(q), or waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing Contract, in each case, other than in the ordinary course of business consistent with past practice;
(q) settle or compromise any claim or litigation, other than any claim or litigation in an aggregate amount not in excess of $1,000,000; provided, that such settlement documents related to any such settlement do not involve any material non-monetary obligations on the part of the Company or the Purchasers;
(r) make any payment to an Affiliate, except (i) in accordance with the terms of any Contract set forth on Schedule 3.23, (ii) compensation to employees in the ordinary course of business, (iii) pursuant to transactions with Chesapeake Energy Corporation or its Affiliates in the ordinary course of business or (iv) in accordance with Section 5.2(a); or
(s) declare, set aside or pay any dividend or other distribution with respect to any shares of capital stock of the Company;
(t) except as set forth on Schedule 5.2(t), become bound or obligated to participate in any operation, or consent to participate in any operation, with respect to any Oil and Gas Interests that is estimated to result in Company expenditures in excess of $5,000,000, except as provided in the 2010 Budget, or which exceeds the allocated cost in the 2010 Budget by more than $5,000,000;
(u) fail to meet royalty payment obligations of the Company or any of its Subsidiaries in connection with their respective oil and gas leases;
(v) enter, or permit any of its Subsidiaries to, (i) enter into any futures, hedge, swap, collar, put, call, floor, cap, option or other contracts that are intended to benefit from or reduce or eliminate the risk of fluctuations in the price of commodities, including Hydrocarbons or securities, other than in the ordinary course of business in accordance with the Company’s current policies or (ii) enter into any fixed price commodity sales agreements with a duration of more than three months;
(w) agree or commit to do any of the foregoing or permit any of its Subsidiaries to do the forgoing; or
(x) intentionally take, or offer or propose to take, or agree to take in writing or otherwise, any of the actions described in Sections 5.2(a) – (w) or any action which would result in any of the conditions set forth in Section 6 not being satisfied.
Appears in 1 contract
Negative Covenants of the Company. (a) Except as expressly contemplated required by this AgreementAgreement and except as set forth in Section 5.2 of the Disclosure Schedules, or otherwise consented to in writing by Parent Buyer (which consent shall not be unreasonably withheld, conditioned or set forth in Schedule 5.02 of the Company Disclosure Scheduledelayed), from the date of this Agreement hereof until the Effective TimeClosing, the Company will not doshall not, and will not permit any of shall cause its subsidiaries Subsidiaries to donot, do any of the foregoingfollowing:
(ai) (iA) grant or increase the compensation amount of any severance payable to (or to become payable to amend any director existing arrangement with) any director, officer or executive officeremployee of the Company Entities, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay (other than payments to employees upon termination in accordance with the written employment and severance agreements listed on Section 3.11 of the Disclosure Schedules pursuant to the normal severance policy of the Company or its subsidiaries as terms in effect on the date of this Agreement Agreement, (B) increase benefits payable under any existing severance or any of the agreements termination pay policies or arrangements disclosed in the Company Disclosure Schedule) toemployment agreements, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into any employee benefit plan or arrangement; or (iv) except such changes as may be required in order to comply with applicable Law, (C) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any Service Provider with annual base compensation of more than $200,000, (D) establish, adopt, amend (except as required by applicable law and actions that are not inconsistent with Law) or terminate any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any director, officer, employee or other Service Provider of the provisions Company Entities, (E) increase compensation, bonus or other benefits payable to any director, officer, employee or other Service Provider of Section 6.08 the Company Entities (except for increases in salary and/or cash bonus opportunities for employees having annual salary of this Agreement$150,000 or less in the Ordinary Course of Business) or (F) terminate (other than for cause or performance-related issues), amend in any material respectfurlough, or take temporarily layoff any other actions Service Provider with respect to, any annual base compensation of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreementmore than $200,000;
(bii) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(iA) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, redeem, purchase repurchase or otherwise acquire any shares of its or reacquire 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)equity securities, or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations obligations, (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (iiB) effect any reorganization reorganization, recapitalization, distribution payable in equity securities, equity split or recapitalization; like change in its capitalization, or (iiiC) split, combine combine, reclassify, reverse split, subdivide or reclassify amend the terms of any of its or its subsidiaries' capital stock equity interests 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 stockequity securities;
(iiii) except as described in Schedule 3.03(b)(i) of the Company Disclosure Scheduleissue, issuepledge, encumber, deliver, award, grant or sell, or agree to or authorize or propose the issuance, pledge, encumber delivery, award, grant or sale (including the grant of any security interestsencumbrances) of, liensany shares of any of its equity securities, claimsany securities convertible into or exercisable or exchangeable for any such equity securities, or any rights, warrants or options to acquire, any such equity securities;
(iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, (A) any Person, joint venture or any business organization or division thereof, (B) any rights, assets, or properties, other than (x) pursuant to existing contracts or commitments or (y) in the Ordinary Course of Business, or (C) any capital stock or equity interests of any Person;
(v) sell, lease, sublease exchange, mortgage, pledge, transfer, impair, or otherwise encumber or dispose of, or agree to sell, lease, sublease exchange, mortgage, pledge, transfer, impair or otherwise encumber or dispose of, any of its assets, other than (A) pursuant to existing contracts or commitments or (B) in the Ordinary Course of Business, and in each case, solely to the extent such asset has a value of less than $500,000;
(vi) propose or adopt any amendments to its Organizational Documents or take any steps towards dissolution or winding up of the Company Entities;
(vii) make any change in any of its methods of accounting or make any reclassification of assets or liabilities, except as may be required by a change in GAAP (including with respect to reserves, revenue recognition, inventory control, prepayment of expenses, timing for payments of accounts payable and collection of accounts receivable);
(viii) create or incur any Liens on any assets of the Company Entities, except (i) for Permitted Liens or (ii) in the Ordinary Course of Business;
(ix) incur, forgive, guarantee or modify any Indebtedness or enter into any other financial commitments, other than draws under revolving lines of credit under the existing credit agreements or in the Ordinary Course of Business;
(x) amend, modify or terminate any Material Contracts, or enter into any Contract that would have constituted a Material Contract had it been entered into on or prior to the date hereof, in each case, other than in the Ordinary Course of Business,
(xi) amend, modify, assign, sublease, supplement, terminate, waive or exercise any rights or seek remedies under any lease with respect to Owned Real Property, or enter into any contract that if it had been entered into prior to the date hereof would have been a lease with respect to the Owned Real Property, in each case, other than in the Ordinary Course of Business;
(xii) make or change any Tax election or change any method of tax accounting; settle or compromise any Tax liability or claim; file any amended material Tax return; enter into any closing agreement relating to any Tax; agree to an extension of a statute of limitations with respect to a Tax liability; surrender any right to claim a Tax refund; prepare any material Tax Return in a manner materially inconsistent with past practice; file any Tax Return in a jurisdiction where such Company Entity did not file a Tax Return of the same type in the immediately preceding Tax period; or file a claim for refund of Taxes;
(xiii) permit the lapse of any existing insurance policy relating to the business or assets of the Company Entities;
(xiv) terminate, amend or fail to renew or preserve any material permit;
(xv) commence any legal Proceeding other than (A)(1) in the Ordinary Course of Business and (2) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business or result in a loss of rights of substantial value, provided that it consults with the Buyer prior to the filing or commencement of such a Proceeding, or (B) for a breach of this Agreement;
(xvi) pay, discharge, satisfy, settle or other compromise any Proceedings resulting in payments by the Company Entities in excess of $250,000 individually or $3,000,000 in the aggregate;
(xvii) make or enter into any Contract to make any capital expenditures, capital additions or capital improvements other than expenditures in the Ordinary Course of Business in amounts not exceeding $3,000,000, in the aggregate; or
(xviii) intentionally take or agree to take in writing or otherwise, any of the actions described in this Section 5.2 that require the consent of Buyer or any action which would result in any of the conditions set forth in Article 7 not being satisfied.
(b) Notwithstanding anything to the contrary in this Agreement, (i) no consent of Buyer shall be required with respect to any matter contemplated by this Agreement to the extent that the requirement of such consent would violate any applicable Law, (ii) with the reasonable prior input of Buyer, any reasonable action taken, or omitted to be taken, by any Company Entity (x) pursuant to any Law, directive, pronouncement or guideline issued by a Governmental Authority or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to, or arise out of, any pandemic, epidemic or disease outbreak (including COVID-19), or (y) to protect the business of the Company Entities in response to COVID-19, that would otherwise be in breach of this Section 5.2, shall not be deemed a breach of this Section 5.2.
Appears in 1 contract
Samples: Merger Agreement (Masimo Corp)
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror (which consent shall not be unreasonably withheld), from the date of this Agreement until the Effective TimeClosing, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) Except pursuant to agreements disclosed in Section 3.10(g) of the Company Disclosure Schedule, (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) increase the compensation payable or pay bonuses to any employees other than in the ordinary course of business, (iii) grant any severance or termination pay (other than pursuant to the normal severance policy practices of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iiiiv) establish, adopt or enter into any employee benefit plan or arrangement; arrangement or (ivv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreementlaw, amend in any material respectamend, or take any other actions (including, without limitation, the acceleration of vesting, waiving of performance criteria or the adjustment of awards or any other actions permitted upon a "change in control" (as defined in the respective plans) of the Company), with respect to, to any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d3.10(g) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of its or any of its subsidiaries' capital stockstock or other equity interests, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per shareCompany;
(i) except as described in Schedule 3.03(b)(iiSection 3.03(c) of the Company Disclosure Schedule, redeem, purchase or otherwise acquire any shares of its or any of its subsidiaries' capital stock or stock, any securities or obligations convertible into or exchangeable for any shares of its or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms)obligations; (ii) effect any reorganization or recapitalizationrecapitalization of the Company or any of its subsidiaries; or (iii) split, combine or reclassify any of its or its subsidiaries' capital stock 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;
(i) except as set forth in Section 3.03(a) hereof or as described in Schedule 3.03(b)(iSection 3.03(c) of the Company Disclosure Schedule, issueissue (whether upon original issue or out of treasury), deliversell, grant, award, grant deliver or limit the voting rights 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; (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which shall be to make such terms materially more favorable to the holders thereof; or (iii) take any action to accelerate the vesting of any of the stock options;
(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 (other than (i) the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice and (ii) the purchase of assets for consideration of not in excess of $100,000 in the aggregate);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets or any assets of any of its subsidiaries, except for pledges or dispositions of assets in the ordinary course of business and consistent with past practice;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal relating to, or that may reasonably be expected to lead to, any Competing Transaction (as defined below), or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to, or endorse, any Competing Transaction, or authorize any of the officers, directors, employees or propose agents of the issuanceCompany or any of its subsidiaries or any agent, deliveryinvestment banker, awardfinancial advisor, grant attorney, accountant or sale (including other representative retained by the grant Company or any of its subsidiaries to take any such action, and the Company shall promptly notify Acquiror or promptly provide Acquiror with a copy of all relevant terms of any security such inquiries or proposals received by the Company or any of its subsidiaries. For purposes of this Agreement, the term "Competing Transaction" shall mean any proposal or offer from any person or entity (other than Acquiror or an affiliate of Acquiror) relating to any acquisition or purchase of all or (other than in the ordinary course of business) any material portion of the assets of, or any possible disposition or issuance of any Company Shares or any capital stock or other equity interests in the Company or any of its subsidiaries (or any rights or securities exercisable for or convertible into Company Shares or any such capital stock or other equity interests), liensor any merger or other business combination with, claims,the Company or any of its subsidiaries (provided that nothing in this Section 5.02(g) shall prevent the Company or its directors from informing the Shareholders of a Competing Transaction if required to do so by Dutch Law);
Appears in 1 contract
Negative Covenants of the Company. Except (i) as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth Acquiror (which consent, for purposes of Section ------- 6.2(a) only, will not be unreasonably withheld) and (ii) with respect to matters ------ disclosed in Schedule 5.02 Schedules to this Agreement which require continued performance pursuant to a contract existing as of the Company Disclosure Schedule, from the date of this Agreement (but not including any modification made after the date of this Agreement) or pursuant to Laws, from the date hereof until the Effective Time, the Company will shall not do, and will not permit any of its subsidiaries to do, do any of the foregoingfollowing:
(a) (i) increase in any manner the compensation payable to or to become payable to fringe benefits of, or pay any director bonus to, any director, officer or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereofemployee; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy practices or existing agreements of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend any employment or severance agreement with, any director, officer or employee, or enter into any employment agreement with any director, officer or employee other than a severance agreement entered into pursuant to a valid employment agreement listed on Schedule 3.12 or otherwise with the prior written consent of ----------- Acquiror; (iii) establish, adopt or adopt, enter into or amend any employee benefit plan ERISA Plan or other arrangement; or (iv) , except as may be required by to comply with applicable law and actions that are Law; (iv) pay any benefit not inconsistent with provided for under any ERISA Plan or other arrangement; (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or ERISA Plan or other arrangement (including the provisions grant of Section 6.08 stock options, stock appreciation rights, stock-based or stock-related awards, performance units or restricted stock, or the removal of this Agreement, amend existing restrictions in any material respectERISA Plan or other arrangement or agreement or awards made thereunder), or (vi) take any action to fund or in any other actions with respect toway secure the payment of compensation or benefits under any agreement or (vii) promote or fire any director, any of the Benefit Plans officer or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreementemployee;
(b) declare declare, set aside 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 stock other than capital stock repurchased from departing employees in the ordinary course of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per sharebusiness;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, redeem, purchase or otherwise acquire any shares of its or any of its subsidiaries' capital stock of the Company or any securities or obligations convertible into or exchangeable for any shares of its or its subsidiaries' capital stock (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)Company, or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock of the Company or any such securities or obligations obligations, or any other securities thereof, other than (except x) redemption and purchases from departing employees in the ordinary course of business or (y) stock acquired by the Company from current employees pursuant to historic Company practices in connection with the exercise of outstanding Stock Options in accordance with their terms)such employees' stock options; (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;.
(id) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interestslimitations in voting rights or other Encumbrances) of, liensany shares of any class of its capital stock (including shares held in treasury but excluding shares issuable upon the exercise of options outstanding on the date hereof in accordance with their terms as of the date hereof), any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options to acquire, any such shares, or amend or otherwise modify the terms of any such rights, warrants or options 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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise subject to any Encumbrance or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise subject to any Encumbrance or dispose of, any of its Assets, except for sales, dispositions or transfers in the ordinary course of business;
(g) propose or adopt any amendments to its articles or certificate of incorporation, bylaws or other comparable charter or organizational documents;
(h) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes which would reasonably be expected to result in a Company Material Adverse Effect, 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 ended December 31, 1997, except in either case as may be required by Law, the Internal Revenue Service or generally accepted accounting principles.
(i) make or agree to make any new capital expenditures which are not included in the Company's 1999 capital budget, a copy of which was furnished to Acquiror, to the extent that such new capital expenditures exceed in the aggregate $25,000;
(i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any agreement having the economic effect of any of the foregoing, except for borrowings incurred in the ordinary course of business, or (ii) make any loans, advances or capital contributions to, or investments in, any other person other than travel and payroll advances made to employees in the ordinary course of business.
(k) pay, discharge, settle or satisfy any claims,, liabilities or obligations (whether absolute or contingent, matured or unmatured, known or unknown), other than the payments, discharges or satisfactions, in the ordinary course of business which are materially in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent Financial Statements or waive any material benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreements to which the Company is a party;
(l) waive, release or assign any rights or claims, or modify, amend or terminate any agreement to which the Company is a party;
(m) make any change in any method of accounting or accounting practice or policy other than those required by generally accepted accounting principles or a Government Entity;
(n) take any action or fail to take any action that would have a Company Material Adverse Effect prior to or after the Effective Time or a material adverse effect after the Effective Time, or that would adversely affect the ability of the Company prior to the Effective Time, or Acquiror or any of its subsidiaries after the Effective Time, to obtain consents of third parties or approvals of Government Entities required to consummate the transactions contemplated in this Agreement; or
(o) authorize, or commit or agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Itc Deltacom Inc)
Negative Covenants of the Company. Except as set forth in the Company Disclosure Schedule, as required by applicable Law, as expressly contemplated by this Agreement, Agreement or as otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleParent, from the date of this Agreement until the Effective Time, the Company will not do, and will not permit any of its subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase the compensation compensation, deferred compensation, or termination pay payable to or to become payable payable, to any director or director, executive officer, unless such increase results employee, agent or consultant of the Company or any of its subsidiaries except for increases in the ordinary course of business, including without limitation, increases resulting from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy of the Company or its subsidiaries as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement) to, or enter into or amend in any material respect any employment or severance agreement with, any director, officer officer, employee, agent or employeeconsultant of the Company or any of its subsidiaries; (iii) establish, adopt or adopt, enter into or amend in any material respect any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing or other employee benefit plan or arrangement; or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend or otherwise modify in any material respectrespect that would be materially adverse to the Company or any of its subsidiaries, or take any such other materially adverse actions with respect to, any of the Benefit Plans Company Material Contracts, any Company Employee Plan or any of the other material employee benefit plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;
(b) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of capital stock, except for (i) dividends by a wholly owned subsidiary of the Company to the Company Company, or another wholly owned subsidiary of the Company, (ii) dividends by a non-wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company, another subsidiary of the Company Common Stock or any other equity holder of such subsidiary so long as such dividends are declared and paid on a pro rata basis in an amount not to exceed $0.11 per sharethe ordinary course of business consistent with past practices, and (iii) quarterly dividends of the Company in amounts consistent with past practices; provided, however, that the record dates of such dividends shall be as disclosed in the Company Disclosure Schedule;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Scheduleredeem, purchase or otherwise acquire, or agree to 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary)stock, or any options, warrants or conversion or other rights (including any stock appreciation rights, phantom stock or similar rights) to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms)obligations; (ii) adopt a plan with respect to or effect any liquidation, dissolution, restructuring, reorganization or recapitalizationrecapitalization of the Company; or (iii) split, combine or reclassify any of its or its subsidiaries' the Company's 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' the Company's capital stock;
(d) (i) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose the issuance, delivery, award, grant or sale (including the grant of any security interestsLiens or limitations on voting rights) of, liensany shares of any class of its or its subsidiaries' capital stock (including shares held in treasury), claims,any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options (including any stock appreciation rights, phantom stock or similar rights) to acquire any such shares, other than issuances, deliveries, awards, grants or sales of its capital stock pursuant to obligations outstanding as of the date of this Agreement; or (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which would be to make such terms materially less favorable to the Company or any of its subsidiaries;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, by forming a partnership or joint venture, 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 (collectively, "Acquisitions") except for any such Acquisitions (A) in which the fair market value of the total consideration paid by the Company and its subsidiaries does not exceed in the aggregate $10,000,000 and (B) that do not present a material risk of making it more difficult to obtain any consents or approvals (including pursuant to the HSR Act) required to consummate the transactions contemplated by this Agreement;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its material assets or any material assets of any of its subsidiaries (including securities), except for dispositions of inventories and of assets in the ordinary course of business and consistent with past practice;
(g) release any third party from its obligations, or grant any consent, under any existing standstill provision relating to an Acquisition Proposal (as defined in Section 5.04(a)), or under any similar confidentiality or other agreement, or fail to fully enforce any such agreement;
(h) adopt or propose to adopt any amendments to its bylaws which would have an adverse impact on the consummation of the Merger and the other transactions contemplated by this Agreement or adopt or propose to adopt any amendments to its charter;
(i) incur any obligation for borrowed money or purchase money indebtedness (including as a guarantor or surety), whether or not evidenced by a note, bond, debenture or similar instrument if such incurrence would interfere with or make more difficult the consummation of the Merger or the other transactions contemplated hereby or increase the cost to Parent of consummating the Merger and such other transactions or make or incur any capital expenditure except in the ordinary course of business consistent with past practice;
(j) make any loan, advance or capital contribution to, or investment in, any person (other than by the Company to any of its wholly-owned subsidiaries or by any wholly-owned subsidiary of the Company to another wholly-owned subsidiary of the Company or to the Company);
(k) enter into any material arrangement, agreement or contract with any third party (other than customers in the ordinary course of business) that provides for an exclusive arrangement with that third party for a term of more than one year;
(l) enter into any arrangement, agreement or contract (i) that could, after the Effective Time, restrict Parent or any of its affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area except as otherwise may be agreed to by Parent in connection with the contemplated dispositions set forth in the Company Disclosure Schedule; or (ii) that would be a Company Material Contract had such contract been in existence on the date hereof;
(m) enter into, amend or extend any exclusive arrangement, agreement or contract for milk supply unless such arrangement, agreement or contract expires or may be terminated on or before December 31, 2001 without penalty;
(n) dispose of any part of its investment in White Wave, Inc., amend in any material respect the agreements with respect to such investment or waive any material rights relating thereto; or
(o) agree in writing to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Suiza Foods Corp)
Negative Covenants of the Company. (a) Except as expressly contemplated by this Agreement, Agreement or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure SchedulePurchasers, from the date of this Agreement until earlier of the Effective TimeClosing or the termination of this Agreement, the Company will shall not do, and will shall not permit any of its subsidiaries Subsidiaries to do, any of the foregoingfollowing:
(a) (i) increase except as set forth in Schedule 5.3(a)(i) of the compensation payable Company Disclosure Schedule, acquire or agree to acquire (whether pursuant to a definitive agreement, a non-binding letter of intent or otherwise), by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of (including by a "farm-in" of any properties or interests), 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 become payable to acquire any director or executive officer, unless such increase results from the operation assets of compensation arrangements in effect prior to the date hereof; (ii) grant any severance or termination pay other Person (other than pursuant to the normal severance policy from a Subsidiary of the Company or its subsidiaries as the purchase of assets from suppliers or vendors in effect on the date ordinary course of this Agreement business and other than assets which, individually or in the aggregate, are not material to the business or operations of the Company or any of its Subsidiaries);
(ii) except as set forth in Schedule 5.3(a)(ii) of the agreements Company Disclosure Schedule sell, lease, exchange, mortgage, pledge, transfer or arrangements disclosed otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of (including by a "farm-out" of any properties or interests), any of its assets or any assets of any of its Subsidiaries, except for pledges or dispositions of assets in the ordinary course of business and except for assets which, individually or in the aggregate, are not material to the business or operations of the Company or any of its Subsidiaries;
(iii) except as set forth in Schedule 5.3(a)(iii) of the Company Disclosure Schedule) to, or enter into or amend any employment or severance agreement with, any director, officer or employee; (iii) establish, adopt or enter into propose to adopt any employee benefit plan amendments to the Company's Articles of Incorporation of Bylaws; other than transactions between the Company and one or arrangement; more of its Subsidiaries or (iv) except as may be required by applicable law and actions that are not inconsistent with the provisions among one or more of Section 6.08 of this Agreementits Subsidiaries, amend in any material respectadopt resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or take any other actions with respect to, any reorganization of the Benefit Plans Company or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this Agreement;
(b) declare or pay any dividend on, Subsidiary; or make any other distribution material changes in respect of, outstanding shares of the Company's capital stock, except for dividends by a wholly owned subsidiary of the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per sharestructure;
(i) except as described set forth in Schedule 3.03(b)(ii5.3(a)(iv) of the Company Disclosure Schedule change any of its material accounting methods, principles, practices or policies or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, suit, Litigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal or other income Tax purposes from those employed in the preparation of the federal or other income Tax Returns or other Tax Returns for the taxable year ending December 31, 1997, except, in the case of either clause (i) or clause (ii), as may be required by Law or GAAP;
(v) other than borrowings in the ordinary course under or permitted by the Credit Agreement, incur 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, whether pursuant to a sale-and-leaseback transaction or otherwise;
(vi) except as set forth in Schedule 5.3(a)(vi) of the Company Disclosure Schedule, redeemmake any loans or advances to any Person, 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 (other than any such acquisition directly from any wholly owned subsidiary (i) advances to employees in the ordinary and usual course of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); business and (ii) effect any reorganization transactions among or recapitalization; or (iii) split, combine or reclassify any between the Company and its Subsidiaries in the ordinary and usual course of its or 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 stockCompany's business;
(ivii) declare or pay any dividend or make any other distribution (whether in cash, stock or property) with respect to its Capital Stock (or other voting or equity securities or interests, as applicable), other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of the Company's business;
(viii) except as described set forth in Schedule 3.03(b)(i5.3(a)(viii) of the Company Disclosure Schedule, enter into, adopt, or (except as may be required by law) amend or terminate any Benefit Plans; approve, implement or amend any employment severance arrangements (other than payments made under the Company's severance plans in effect as of the date hereof) or discharge or, except to replace any officer or executive management personnel who have departed on substantially the same or lesser terms as the departed Person, hire any officers or executive management personnel; authorize or enter into any employment, severance, consulting services or other agreement with any officers or executive management personnel; authorize or make any payment to any director, officer, shareholder or employee, or any Affiliate of the foregoing (whether as a loan or otherwise) except for regular compensation and other payments consistent with past practice; or except at set forth in Section 5.3(a) (viii) of the Company Disclosure Schedule, change the compensation or benefits provided to any director, officer or employee as of the date hereof;
(ix) materially amend, terminate or fail to use all commercially reasonable efforts to maintain in full force and effect and, if applicable, renew any Material Contract (provided that the Company and its Subsidiaries shall not be required to renew any Material Contract on terms that are less favorable to the Company or its Subsidiaries), or fail to use all commercially reasonable efforts to prevent a default in any material respect (or take or omit to take any action that, with or without the giving of notice or passage of time, would constitute a material default) under any Material Contract;
(x) split, combine, reclassify or amend any term of any of its shares or capital stock (or other voting or equity securities or interests, as applicable);
(xi) except as set forth in Schedule 5.3(a)(xi) of the Company Disclosure Schedule, (i) issue, deliversell or deliver (whether through the issuance or granting of options, awardwarrants, grant or sellcommitments, subscriptions, rights to purchase, or authorize otherwise) any of its shares or propose Capital Stock or other securities other than (A) as contemplated herein or (B) pursuant to awards issued and outstanding as of the issuance, delivery, award, grant date hereof under the Stock Plans or sale (including as required under the grant terms of any other security interestsof the Company outstanding as in effect as of the date of this Agreement, liensor (ii) purchase or otherwise acquire any of its shares or capital stock, claims,employee or director stock options, warrants or other equity securities or debt securities other than pursuant to the terms thereof as in effect as of the date of this Agreement; or
(xii) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Eex Corp)
Negative Covenants of the Company. Except Without limiting the foregoing, and as expressly an extension thereof, except as otherwise specifically contemplated by this Agreement, otherwise consented to in writing by Parent or set forth in Schedule 5.02 of during the Company Disclosure Schedule, from period commencing with the date execution and delivery of this Agreement until and terminating upon the earlier to occur of the Effective TimeTime and the termination of this Agreement pursuant to and in accordance with Section 9.1, the Company will not donot, and will not permit any of its subsidiaries the other Company Parties to, do or cause to dobe done any of the following without the prior written consent of Acquiror:
(i) create any Encumbrance on any assets or properties (whether tangible or intangible) of the Company Parties, other than Permitted Encumbrances;
(ii) except in the Ordinary Course of Business, sell, assign, transfer, lease or otherwise dispose of, or agree to sell, assign, transfer, lease or otherwise dispose of, any of the foregoing:material assets of the Company Parties;
(iii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof;
(iv) change any method of accounting or accounting practice used by the Company Parties, other than such changes required by GAAP;
(v) split, combine or reclassify any shares of its capital stock, issue, pledge, sell or dispose any additional shares of Company Capital Stock, or any capital stock of or other equity interests in the Company or any of its Subsidiaries, or securities convertible into or exchangeable for shares of Company Capital Stock or any capital stock of or other equity interests in the Company or any of its Subsidiaries, or issue or grant any options, warrants, calls, subscription rights or other rights of any kind to acquire additional shares of Company Capital Stock or any capital stock of or other equity interests in the Company or any of its Subsidiaries, except pursuant to the exercise of Company Options or Warrants outstanding on the date of this Agreement or upon the conversion of Series A Preferred Stock or Series B Preferred Stock outstanding on the date hereof in accordance with the terms of the Company’s Certificate of Incorporation, as in effect on the date hereof;
(vi) amend in any respect the Company Certificate of Incorporation or the Company Bylaws or the organizational documents of any of the Company’s Subsidiaries;
(vii) take any action which would, or would reasonably be expected to, interfere with the consummation of the transactions contemplated by this Agreement or delay the consummation of such transactions;
(viii) declare, set aside or pay any dividend or distribution or other capital return in respect of any shares of Company Capital Stock or any capital stock of or other equity interests in the Company, or redeem, purchase or acquire any shares of Company Capital Stock or any capital stock of or other equity interests in the Company;
(ix) make any loan, advance (except for business expenses incurred in the Ordinary Course of Business) or capital contribution to, or investments in, any other Person;
(x) create, incur, assume or guarantee any Debt in excess of $250,000 in the aggregate or waive or release any right material to the Company or any Subsidiary;
(xi) except as required by Law, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, extend or waive any applicable statute of limitations with respect to Taxes, file any amended Tax Returns, enter into any closing agreement in respect of or settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability or apply for any Tax pre-ruling (or assist any of its shareholders to apply for any Tax pre-ruling) other than as contemplated by this Agreement;
(xii) except to the extent set forth in Section 4.9(b) or Section 4.16(h) of the Company Disclosure Schedule, (a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from the operation of compensation arrangements in effect prior to the date hereof; (ii) grant any severance severance, retention or termination pay to (other than pursuant to the normal severance policy existing plans, policies, agreements or arrangements set forth in Section 4.16(a) or 4.17(a) of the Company Disclosure Schedule), or its subsidiaries amend any existing severance, retention or termination arrangement with, any current or former director, officer, employee or consultant of a Company Party, (b) except as set forth in Section 4.16(a) or 4.17(a) of the Company Disclosure Schedule, increase or accelerate the payment or vesting of, benefits payable under any existing severance, retention or termination pay policies or employment agreements, except as required pursuant to the terms thereof as in effect on the date of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure ScheduleAgreement, (c) to, or enter into or amend any employment, consulting, deferred compensation or other similar agreement (other than employment and consulting agreements for non-officer employees or severance agreement with, consultants entered into in the Ordinary Course of Business which are terminable without payment or penalty upon not more than 60 days notice) with any director, officer officer, employee or employee; consultant of a Company Party, (iiid) establish, adopt or enter into amend (except as required by applicable Law) any employee collective bargaining agreement, bonus, profit-sharing, thrift, pension, retirement, post-retirement medical or life insurance, retention, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement; arrangement covering any present or former director, officer, employee or consultant, or any beneficiaries thereof, of a Company Party or (ive) increase the compensation, bonus or other benefits payable to any director, officer, employee or consultant of a Company Party, except as may be for increases required by applicable law and actions that are not inconsistent with the provisions terms of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreementsexisting arrangements, policies or other arrangements described agreements set forth in Section 3.10(d4.16(a) of this Agreement;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per share;
(i) except as described in Schedule 3.03(b)(ii4.17(a) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;
(ixiii) except as described waive any benefits of, agree to modify in Schedule 3.03(b)(iany respect, fail to enforce, or consent to any matter with respect to which consent is required under, any confidentiality, non-solicitation, non-compete standstill or similar agreements to which any Company Party is a party;
(xiv) take any action to render inapplicable, or to exempt any third party from, (a) the provisions Section 203 of the Company Disclosure ScheduleDGCL or (b) any other state takeover Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares, issuein each case, deliverother than the Merger;
(xv) amend, awardterminate, grant take or omit to take any action that would constitute a violation of or default under, or waive any rights under, any Listed Contract or enter into any Contract that would constitute a Listed Contract;
(xvi) take any action that is intended to or would reasonably be expected to result in any representations and warrants set forth in Article IV to become untrue or any condition set forth in Article VII not being satisfied;
(xvii) discharge or satisfy any Encumbrance or pay any obligation or liability other than in the Ordinary Course of Business;
(xviii) sell, assign, transfer, license or sublicense any Proprietary Rights, other than pursuant to licenses with customers entered into in the Ordinary Course of Business;
(xix) make or commit to make any capital expenditure in excess of $50,000 per item or $250,000 in the aggregate;
(xx) institute or settle any Action;
(xxi) apply for or receive any Government Grant; or
(xxii) enter into or authorize any agreement to take, or propose cause to be taken, any of the issuance, delivery, award, grant or sale (including the grant of any security interests, liens, claims,actions set forth in this Section 6.1(b).
Appears in 1 contract
Negative Covenants of the Company. Except as expressly contemplated by this Agreement, described in SECTION 7.02 of the Company Disclosure Schedule or otherwise consented to in writing by Parent or set forth in Schedule 5.02 of the Company Disclosure ScheduleAcquiror, which consent shall not be unreasonably withheld, from the date of this Agreement until the Effective Time, the Company will not doshall not, and will the Shareholders shall not permit any (whether in their capacities as shareholders or directors of its subsidiaries to dothe Company), and the Shareholders shall cause the Company not to, do any of the foregoingfollowing:
(a) (i) increase the compensation payable to or to become payable to any director or executive officer, unless such increase results from officer of the operation Company or to any employee other than an employee of compensation arrangements in effect prior to a professional employer organization client of the date hereofCompany; (ii) grant any severance or termination pay (other than pursuant to the normal any severance policy agreement of the Company or its subsidiaries as described in effect on the date SECTION 4.11 of this Agreement or any of the agreements or arrangements disclosed in the Company Disclosure Schedule) to), or enter into or amend any employment or severance agreement with, any director, officer or employee; , (iii) establish, adopt or enter into or amend any employment agreement with any director, officer or employee benefit plan or arrangementthat would extend beyond the Effective Time except on an at-will basis; or (iv) establish, adopt, enter into or amend any Employee Benefit Plan, except as may be required by to comply with applicable law and actions that are not inconsistent with the provisions of Section 6.08 of this Agreement, amend in any material respect, or take any other actions with respect to, any of the Benefit Plans or any of the plans, programs, agreements, policies or other arrangements described in Section 3.10(d) of this AgreementLaw;
(b) 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 the Company to the Company or another wholly owned subsidiary of the Company and except for regular semi-annual dividends with respect to the Company Common Stock in an amount not to exceed $0.11 per sharestock other than Shareholder Tax Distributions;
(i) except as described in Schedule 3.03(b)(ii) of the Company Disclosure Schedule, 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 (other than any such acquisition directly from any wholly owned subsidiary of the Company in exchange for capital contributions or loans to such subsidiary), or any options, warrants or conversion or other rights to acquire any shares of its or its subsidiaries' capital stock or any such securities or obligations (except in connection with the exercise of outstanding Stock Options in accordance with their terms); (iic) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its or 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;
(id) except as described in Schedule 3.03(b)(i) of the Company Disclosure Schedule, issue, deliver, award, grant or sell, or authorize or propose 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 of any class of its capital stock (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any such shares, or any rights, warrants or options to acquire, any such shares;
(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 (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of any of its assets, except for dispositions in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregate;
(g) initiate, solicit or encourage (including by way of furnishing information or assistance) any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize any of the officers or directors of the Company to take any such action, and the Shareholders and the Company shall use their reasonable best efforts to cause the officers, employees, agents and representatives of the Company (including, without limitation, any investment banker, financial advisor, attorney or accountant retained by the Company) not to take any such action. The Shareholders shall immediately notify Acquiror in writing of any offer, proposal or communication received by either of them or, to their knowledge, the Company or any Affiliate, employee or consultant of the Company, of any Competing Transaction.
Appears in 1 contract
Samples: Merger Agreement (Vincam Group Inc)
