Operation of the Company. (a) During the Pre-Closing Period, the Company will carry on its business solely in the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoing: (i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement; (ii) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company; (iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof; (iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business; (v) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements); (vi) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy; (vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement; (viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person; (ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month; (x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contract; (xi) the Company shall not (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business consistent with past practice; (xii) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.); (xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000; (xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect; (xv) the Company shall not make any Tax election; and (xvi) the Company shall not agree or commit to take any of the actions described in clauses "(v)" through "
Appears in 2 contracts
Samples: Merger Agreement (Andataco Inc), Merger Agreement (Nstor Technologies Inc)
Operation of the Company. During the period from the date of this Agreement to the Effective Time, except with the prior written consent of SUI (which consent shall not be unreasonably withheld, conditioned or delayed) or as specifically contemplated by this Agreement or the Omnibus Agreement or as set forth on Schedule 11.3, the Company shall, and shall cause each of its Subsidiaries to:
(a) During the Pre-Closing Period, the Company will use all commercially reasonable efforts to carry on its business solely businesses in the usual usual, regular and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business heretofore conducted and operations have been conducted prior in compliance in all material respects with applicable Law and, to the date of this Agreement;
(ii) the Company shall extent consistent herewith, use commercially reasonable efforts to preserve intact in all material respects its current business organization, keep available goodwill, ongoing businesses and Company’s qualification as a REIT within the services meaning of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the CompanyCode;
(iiia) the Company shall keep in full force all insurance policies maintained by it as of the date hereofnot enter into, assume or acquire any asset subject to any Tax Protection Agreement;
(iv1) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions in respect of, Company Shares or stock or other equity interests in any Company Subsidiary that is not directly or indirectly wholly‑owned by the Company, except (a) the authorization and payment of regular quarterly dividends that are consistent with past practices, and (b) the authorization and payment of any shares dividend or distribution necessary for the Company to maintain its qualification as a REIT under Section 856(c) of Capital Stockthe Code, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except in each case with respect to the Company Shares; provided that the Company may repurchase shall notify SUI of the proposed record date for any such distribution prior to such date, (2) not split, combine, adjust or reclassify any Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements);
(vi) the Company shall not sell, Shares or issue or authorize the issuance of (i) any Capital Stock other securities in respect of, in lieu of or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable in substitution for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock or (3) except as expressly contemplated herein, purchase, redeem or otherwise acquire any Company Shares or any options, warrants or rights to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policyacquire, or security convertible into, Company Shares;
(viic) the (1) not change in any material respect that is adverse to Company shall not amend or waive any of its rights undermethods, principles or practices of accounting (including any method of accounting for Tax purposes) in effect or (2) not settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises relating to Taxes on real property or sales Taxes in an amount not to exceed, individually or in the aggregate, $50,000, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contract;
(xi) the Company shall not (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business consistent with past practice;
(xii) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting reporting income or accounting practices deductions for federal income Tax purposes from those employed in any material respectthe preparation of its federal income Tax Return for the taxable year ended December 31, 2013, except as to clauses (1) and (2) as may be required by the SEC, applicable Law or GAAP;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take any of the actions described in clauses "(v)" through "
Appears in 2 contracts
Samples: Merger Agreement (Sun Communities Inc), Merger Agreement (Sun Communities Inc)
Operation of the Company. During the period from the date of this Agreement to the Effective Time, except with the prior written consent of SUI (which consent shall not be unreasonably withheld, conditioned or delayed) or as specifically contemplated by this Agreement or the Omnibus Agreement or as set forth on Schedule 11.3, the Company shall, and shall cause each of its Subsidiaries to: (a) During the Pre-Closing Period, the Company will use all commercially reasonable efforts to carry on its business solely businesses in the usual usual, regular and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business heretofore conducted and operations have been conducted prior in compliance in all material respects with applicable Law and, to the date of this Agreement;
(ii) the Company shall extent consistent herewith, use commercially reasonable efforts to preserve intact in all material respects its current business organization, keep available goodwill, ongoing businesses and Company’s qualification as a REIT within the services meaning of its current officersthe Code; (a) not enter into, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;assume or acquire any asset subject to any Tax Protection Agreement; (b)
(iii1) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions in respect of, Company Shares or stock or other equity interests in any Company Subsidiary that is not directly or indirectly wholly‑owned by the Company, except (a) the authorization and payment of regular quarterly dividends that are consistent with past practices, and (b) the authorization and payment of any shares dividend or distribution necessary for the Company to maintain its qualification as a REIT under Section 856(c) of Capital Stockthe Code, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except in each case with respect to the Company Shares; provided that the Company may repurchase shall notify SUI of the proposed record date for any such distribution prior to such date, (2) not split, combine, adjust or reclassify any Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements);
(vi) the Company shall not sell, Shares or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Company Common Stock or (3) except as expressly contemplated herein, purchase, redeem or otherwise acquire any Company Shares or any options, warrants or rights to acquire, or security convertible into, Company Shares; (c)
(1) not change in any material respect that is adverse to Company any of its methods, principles or practices of accounting (including any method of accounting for Tax purposes) in effect or (2) not settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises relating to Taxes on real property or sales Taxes in an amount not to exceed, individually or in the aggregate, $50,000, or change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of its federal income Tax Return for the taxable year ended December 31, 2013, except as to clauses (1) and (2) as may be required by the SEC, applicable Law or GAAP; (e) not amend the Organizational Documents of the Company or any of its Subsidiaries; (f) (i) maintain all financial books and records in all material respects in accordance with GAAP (or any Capital Stock or other securityinterpretation thereof), (ii) to not make any option material change to its methods of accounting in effect as of the date hereof, except as required by a change in GAAP (or right to acquire any Capital Stock interpretation thereof) or other securityin applicable Law, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditurechange, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP; (g) duly and timely file all material reports and other material documents required to be filed with any Governmental Authority; (h) not adopt a plan of complete or (ii) amend partial liquidation or prematurely terminateresolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or waive any material right or remedy under, any such contract;
(xi) the Company shall not bankruptcy reorganization; and (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose ofnot authorize, or lease enter into any contract, agreement, commitment or license, any right or other asset arrangement to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business consistent with past practice;
(xii) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take do any of the actions described in clauses "(v)" through "foregoing.
Appears in 1 contract
Samples: Merger Agreement
Operation of the Company. (a) During S BUSINESS. Unless permitted by Parent, during the Pre-Closing Period, the Company will carry on its business solely in the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(ia) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
(iib) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants officers and other similar representatives employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iiic) the Company shall keep in full force all insurance policies maintained by it as identified in Part 2.17 of the date hereofDisclosure Schedule or procure substantial similar policies;
(ivd) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor Parent concerning the status of the Company's business;
(ve) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of Capital Stockcapital stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock capital stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements)securities;
(vif) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock capital stock or other security, (ii) any option or right to acquire any Capital Stock capital stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock capital stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policysecurity;
(viig) the Company shall not amend the Company's Certificate of Incorporation or waive any of its rights underbylaws, or permit the acceleration of vesting under, (i) except become a party to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreementAcquisition Transaction;
(viiih) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other PersonEntity;
(ixi) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not on average exceed $50,000 20,000 per month;
(xj) the Company shall not (i) enter into, or permit any of the material assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practiceEncumbrance, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractMaterial Contract;
(xik) the Company shall not not:
(1) except in the ordinary course of business consistent with past practice (i) acquire, lease or license any right or other asset from any other PersonPerson (except as otherwise required under this Agreement), (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in pursuant to Contracts that are not Material Contracts or (2) enter into any transaction material to the ordinary course business or assets of business consistent with past practicethe Company;
(xiil) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), business) or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)money;
(xiiim) the Company shall not (i) establish, adopt or amend any employee benefit planEmployee Benefit Plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employeesemployees (except under the acquisition bonus program described in Part 2.15(j) of the Disclosure Schedule), or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,00050,000 (other than Xxx Xxxxxxxx, a resident of Oregon, who has been extended an offer of employment by the Company as of the date hereof);
(xivn) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xvo) the Company shall not make any Tax election; and;
(xvip) the Company shall not commence or settle any material Legal Proceeding;
(q) the Company shall not agree or commit to take any of the actions described in clauses "(ve)" through "(p)" above.
Appears in 1 contract
Samples: Merger Agreement (Media 100 Inc)
Operation of the Company. (a) During 8.1 Notwithstanding any other provision hereof or contained in the Pre-Closing Period, Articles of Association of the Company will carry on its business solely in from time to time or the usual and ordinary course consistent with past practice. Without limiting Articles or the generality of IFT Agreement during the foregoing:
(i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date continuance of this Agreement;
(ii) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) Agreement the Company shall not declare, accrue, set aside without first obtaining the prior consent in writing of at least three A Shareholders together holding not less than 75% of the issued A Shares and the holder(s) of more than half of the issued B Shares allow or pay permit to occur any dividend of the events referred to in Part 1 of the Third Schedule in relation to the Company or make any Subsidiary.
8.2 Notwithstanding any other distribution provision hereof or contained in the Articles of Association of the Company from time to time or the Articles or the IFT Agreement during the continuance of this Agreement the Company shall not without the prior approval of the Board allow or permit to occur any of the events referred to in Part 2 of the Third Schedule in relation to the Company or any Subsidiary.
8.3 Notwithstanding any provision to the contrary contained in the Articles of Association of the Company from time to time or the Articles or the IFT Agreement the parties hereby mutually agree and undertake and shall use their respective powers to procure that:
(a) the business of the Company consists exclusively of the Business;
(b) all cheques or other bankers payment instructions (or series of related cheques or other bankers payment instructions) drawn by the Company or any of the Subsidiaries in excess of (pound)15,000 are signed by at least one A Director and one B Director PROVIDED that this sub-clause (b) shall not apply in respect of any shares payments to any of Capital Stockthe following: the Inland Revenue, and shall not repurchaseH.M. Customs & Excise, redeem any Society Trust Account or otherwise reacquire any shares of Capital Stock Prize Fund Trust Account maintained by the Company, IFT, IFT Management Limited or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant principal service provider or to the terms payment of existing restricted stock purchase agreements)regular monthly salaries via the Company's pay-roll system;
(vic) the Company shall not sell, issue or authorize the issuance board of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that directors of the Company shall be permitted to issue Company Common Stock to employees upon determines the exercise general policy of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend (including all strategies, budgets and guidelines) (subject to the express provisions of this Agreement), including the scope of its respective activities and operations.
8.4.1. Where this Agreement provides that any particular transaction or waive matter requires the consent, approval or agreement of IFT or the A Shareholders or the B Shareholders (or any of its rights under, them) such consent approval or permit the acceleration agreement may be given subject to such terms and conditions as IFT or such A Shareholders or B Shareholders may impose and any breach of vesting under, (i) except such terms and conditions by any person subject thereto shall ipso facto be deemed to the extent expressly permitted under be a breach of the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contract;
(xi) the Company shall not (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business consistent with past practice;
(xii) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take any of the actions described in clauses "(v)" through ".
Appears in 1 contract
Operation of the Company. (a) During the Pre-Closing PeriodExcept as expressly contemplated by this Agreement or as contemplated by Schedule 5(c), the Seller will, to the extent it has the Legal Right, cause the Company not to engage in any practice, take any action or enter into any transaction outside the Ordinary Course of Business without the prior consent of the Buyer (which consent shall not be unreasonably withheld or delayed). Subject to compliance with applicable Law, the Seller will carry confer on a regular and frequent basis (generally expected to be at least twice per month) with one or more representatives of the Buyer to report on operational matters and the general status of the Company and its business solely in operations and will promptly provide to the usual and ordinary course consistent Buyer or its representatives copies of all filings it makes with past practicerespect to the Company with any Governmental Authority during such period. Without limiting the generality of the foregoing:, during the period commencing on the date of this Agreement and continuing to the Closing Date, the Seller will, vote its Equity Interest in the Company (and cause each of the Seller’s representatives who act as a committee member, officer or other representative of the Company to vote in such capacity) against the Company doing any of the following, in any case where such matter is subject to a vote (except as may be necessary or appropriate in case of force majeure or other emergency and except as expressly contemplated by this Agreement or by Schedule 5(c)), unless otherwise consented to by the Buyer (which consent, if requested by the Seller, shall not be unreasonably withheld or delayed):
(i) the Company shall conduct sell, lease or otherwise dispose of any of its business and operations property or assets, in each case, other than sales of services in the ordinary course Ordinary Course of Business and in substantially the same manner as such business and operations have been conducted prior to the date dispositions of this Agreementobsolete, damaged or defective parts, supplies or inventory;
(ii) acquire (including by merger, consolidation or acquisition of Equity Interest or assets) any Person, make an investment in or a loan to any Person (other than loans to employees in amounts not to exceed in the Company shall use reasonable efforts aggregate outstanding amount $1.5 million and advances of credit to preserve intact its current business organizationcustomers in the Ordinary Course of Business), keep available or acquire (including by making capital expenditures or leasing (other than leases of equipment made in the services Ordinary Course of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will Business)) any assets with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Companyan aggregate value in excess of $1.5 million;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereofenter into any joint venture, partnership or similar arrangement;
(iv) incur or issue any Indebtedness or debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the Company shall cause its officers to report regularly Obligations of any Person, or make any loans or advances, or delay or postpone beyond the applicable due date the payment of accounts payable or other liabilities other than (but A) endorsements of checks for deposit, (B) causing the issuance of letters of credit, performance bonds and similar Obligations in no event less frequently than weeklythe Ordinary Course of Business consistent with past practice, (C) to nStor concerning capital lease Obligations that do not exceed $1.5 million, individually or in the status aggregate, and (D) repayments, in whole or in part, of working capital borrowings outside the Company's businessOrdinary Course of Business;
(v) cause or allow any part of the Company shall not declareAssets to become subject to an Encumbrance, accrue, set aside or pay any dividend or make any except for Permitted Encumbrances and other distribution Encumbrances identified in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreementsSchedule 4(e)(i);
(vi) the Company shall not issue, sell, issue pledge, dispose of, grant, encumber or authorize the issuance issuance, sale, pledge, disposition, grant, repurchase, redemption or encumbrance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that Equity Interest in the Company or any Commitments with respect to any Equity Interest in the Company or declare, set aside or make any distributions or dividends in respect of any such Equity Interest except distributions of cash in the Ordinary Course of Business; provided, however, that an amount equal to any such distribution actually received by the Seller after the Deemed Closing Date and before the Closing Date shall be permitted constitute a Purchase Price Decrease (but only to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policyextent such distribution is not reflected in the Working Capital Adjustment);
(vii) the Company shall not enter into, amend (or waive any of its rights right under) in any material respect, or permit terminate before the acceleration expiration of vesting underthe term thereof, (i) except any material Company Contract other than to the extent expressly permitted under the terms of this Agreement, any provision of any of such contract terminates in accordance with its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreementterms;
(viii) allow any Permits to terminate or lapse other than expirations in accordance with their terms, in which case the Company shall not (i) amend use their commercially reasonable efforts to obtain an extension or permit the adoption replacement of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Personsuch expired Permit;
(ix) cancel or compromise any debt or claim, or settle any action, litigation, complaint, rate filing or administrative proceeding involving payment by the Company shall not make any capital expenditureor to the Company, except for capital expenditures thatwhere the terms of all such settlements, when added to all other capital expenditures made on behalf of cancellations or compromises adversely impact the Company during the Pre-Closing Period, do not exceed $50,000 per monthafter such settlement or agreement;
(x) except as required by applicable Law, make, change or revoke any Tax election relevant to the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractCompany Assets;
(xi) change any accounting practices in any material respect with the Company shall not (i) acquire, lease or license exception of any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of changes in accounting methodologies that have already been agreed upon by the Company in the ordinary course of business Company’s Equity Interest holders, consistent with past practiceits Organizational Documents;
(xii) amend the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)Company’s Organizational Documents;
(xiii) utilize any Company Asset for any purpose other than in connection with the business of the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;as currently conducted; and
(xiv) the Company shall not change enter into any of its methods of accounting contract, agreement or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit commitment to take do any of the actions described in clauses "(v)" through "foregoing.
Appears in 1 contract
Operation of the Company. (a) During Except as set forth on Schedule 6.02 or as otherwise expressly contemplated by this Agreement, during the Pre-Closing Effective Period, the Company will carry on its business solely conduct the Business in the usual and ordinary course of the Business consistent with past practice. During the Effective Period, the Company shall pay its debts and Taxes when due unless subject to a good faith dispute and, in the case of Taxes, for which adequate reserves have been established, pay or perform other Liabilities and obligations in the ordinary course of the Business subject to good faith disputes over whether payment or performance is owing, and use commercially reasonable efforts to preserve its present business organizations, keep available the services of its employees, consultants and contractors, preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, maintain all of its cannabis-related Permits and continue the Projects in accordance with the applicable Project Plans. During the Effective Period, the Company and each Seller will promptly notify Parent and Buyer of any event or occurrence of which it receives knowledge, and that the Company or such Seller believes could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 6.02 or expressly contemplated by this Agreement, during the Effective Period, no Seller will allow the Company to do, and the Company will not do, any of the following without the prior written consent of Parent and Buyer (which solely for this purposes may be consented to via email), which may be withheld in their sole discretion:
(a) adopt any change to the Company LLC Agreement or any of its other organizational or governance documents or the rights and preferences of the Company Interests;
(b) merge or consolidate with any other Person or acquire equity interests or assets of any other Person other than (i) acquisitions of supplies and inventory the Company shall conduct its ordinary course of business, and (ii) capital expenditures permitted by Section 6.02(k), or effect any business and operations combination, joint venture, partnership, recapitalization or similar transaction;
(c) sell, lease, license, encumber or otherwise dispose of any material amount of tangible or intangible assets, securities or other property, individually or in the aggregate, in excess of except in the ordinary course and in substantially of Business (including the same manner as such business and operations have been conducted prior to the date sale of this AgreementInventory consistent with past practices);
(iid) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants and other enter into any real estate transaction involving a real estate investment trust or enter into any sale-leaseback transaction or similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Companyreal estate transaction;
(iiie) issue any debt or equity securities of any kind, including any membership interests, options, warrants, borrowed money, notes or instruments convertible into any equity securities, other than the Company shall keep draws on the Bridge Loan or the other indebtedness described in full force all insurance policies maintained by it as of the date hereofSection 6.08;
(ivf) create or assume any loan pursuant to the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status provisions of the Company's businessCARES Act;
(vg) make or change any election in respect of Taxes, amend, modify or otherwise change any filed Tax Return, adopt or request permission of any taxing authority to change any accounting method in respect of Taxes, enter into any closing agreement in respect of Taxes, settle any claim or assessment in respect of Taxes other than settlements of any claim or assessment which contain a release of all claims in exchange for a payment of monetary amount, surrender or allow to expire any right to claim a refund of Taxes, consent to any extension or waiver of the Company shall not limitation period applicable to any claim or assessment in respect of Taxes or in respect to any Tax attribute that would give rise to any claim or assessment of Taxes, or claim any Tax credits under Section 2301 of the CARES Act;
(h) declare, accrue, set aside or pay any dividend or other distribution with respect to the Company Interests or make any loans, advances or payments to any Sellers, other distribution than (i) in respect connection with existing indebtedness owed by the Company to any Seller (including any amounts payable or distributable to pay such Seller for any Taxes of such Seller (or its direct and indirect equityholders in the case of any shares of Capital Stock, and shall not repurchase, redeem Seller classified as a partnership or otherwise reacquire disregarded entity for income Tax purposes) for the original issue discount for any shares of Capital Stock such indebtedness) or other securities (except that the Company may repurchase Company Common Stock from former employees ii) Tax distributions to Sellers made pursuant to the terms of existing restricted stock purchase agreements)the Company LLC Agreement;
(vi) the Company shall not sell, issue or authorize the issuance of (i) create or incur any Capital Stock Encumbrance (other than Permitted Encumbrances) on any of its assets or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policyproperties;
(viij) the Company shall not amend make any loan, advance or waive any of its rights under, capital contribution to or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest investment in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract Person other than trade credit in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractthe Business;
(xik) make any capital expenditure that is not consistent with the Company shall not Project Plans or in excess of in the aggregate;
(il) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset grant to any other Personemployee, consultant or (iii) waive contractor who earns in excess of per year any increase in compensation or relinquish any rightbenefits, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business the Business and consistent with past practicepractice or as may be required under existing Contracts;
(xiim) enter into or establish or amend or modify any Benefit Plan, except as may be required by Law or the existing Benefit Plans;
(n) enter into any new employment or consulting Contract with an employee or contractor resulting in payments by the Company shall not of more than or collective bargaining Contract;
(io) lend money enter into or amend any Related Party Transaction;
(p) terminate or amend any Material Contract;
(q) enter into any settlement with respect to any Person (except that the Company may make routine travel advances Action against or relating to employees in the ordinary course it other than settlements of business and may, consistent with its past practices, allow employees to acquire Company Common Stock any Action which contain a release of all claims in exchange for promissory notes upon exercise a payment of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);monetary amount not to exceed
(xiiir) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods method of accounting or accounting practices in any material respectprinciples or practice or cash management services unless required by applicable Law;
(xvs) the Company shall not make transfer any Tax electioncannabis-related Permits or Permit applications or enter into any management services agreements; andor
(xvit) the Company shall not agree agree, commit or commit enter into any arrangement or understanding to take do any of the actions described in clauses "(v)" through "foregoing.
Appears in 1 contract
Operation of the Company. (a) During the Pre-Closing PeriodExcept as expressly contemplated by this Agreement or as contemplated by Schedule 5(c), the Seller will, to the extent it has the Legal Right, cause the Company not to engage in any practice, take any action or enter into any transaction outside the Ordinary Course of Business without the prior consent of the Buyer (which consent shall not be unreasonably withheld or delayed). Subject to compliance with applicable Law, the Seller will carry confer on a regular and frequent basis (generally expected to be at least twice per month) with one or more representatives of the Buyer to report on operational matters and the general status of the Company and its business solely in operations and will promptly provide to the usual and ordinary course consistent Buyer or its representatives copies of all filings it makes with past practicerespect to the Company with any Governmental Authority during such period. Without limiting the generality of the foregoing:, during the period commencing on the date of this Agreement and continuing to the Closing Date, the Seller will, vote its Equity Interest in the Company (and cause each of the Seller’s representatives who act as a committee member, officer or other representative of the Company to vote in such capacity) against the Company doing any of the following, in any case where such matter is subject to a vote (except as may be necessary or appropriate in case of force majeure or other emergency or to comply with any provisions of the Company’s Organizational Documents with respect to providing approvals in the best interests of the Company and except as expressly contemplated by this Agreement or by Schedule 5(c)), unless otherwise consented to by the Buyer (which consent, if requested by the Seller, shall not be unreasonably withheld or delayed):
(i) the Company shall conduct sell, lease or otherwise dispose of any of its business and operations property or assets, in each case, other than sales of services in the ordinary course Ordinary Course of Business and in substantially the same manner as such business and operations have been conducted prior to the date dispositions of this Agreementobsolete, damaged or defective parts, supplies or inventory;
(ii) acquire (including by merger, consolidation or acquisition of Equity Interest or assets) any Person, make an investment in or a loan to any Person (other than loans to employees in amounts not to exceed in the Company shall use reasonable efforts aggregate outstanding amount $10.0 million and advances of credit to preserve intact its current business organizationcustomers in the Ordinary Course of Business), keep available or acquire (including by making capital expenditures or leasing (other than leases of equipment made in the services Ordinary Course of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will Business)) any assets with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Companyan aggregate value in excess of $10.0 million;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereofenter into any joint venture, partnership or similar arrangement;
(iv) incur or issue any Indebtedness or debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the Company shall cause its officers to report regularly Obligations of any Person, or make any loans or advances, or delay or postpone beyond the applicable due date the payment of accounts payable or other liabilities other than (but A) endorsements of checks for deposit, (B) causing the issuance of letters of credit, performance bonds and similar Obligations in no event less frequently than weeklythe Ordinary Course of Business consistent with past practice, (C) to nStor concerning capital lease Obligations that do not exceed $10.0 million, individually or in the status aggregate, and (D) repayments, in whole or in part, of working capital borrowings outside the Company's businessOrdinary Course of Business;
(v) cause or allow any part of the Company shall not declareAssets to become subject to an Encumbrance, accrue, set aside or pay any dividend or make any except for Permitted Encumbrances and other distribution Encumbrances identified in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreementsSchedule 4(e)(i);
(vi) the Company shall not issue, sell, issue pledge, dispose of, grant, encumber or authorize the issuance issuance, sale, pledge, disposition, grant, repurchase, redemption or encumbrance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that Equity Interest in the Company or any Commitments with respect to any Equity Interest in the Company or declare, set aside or make any distributions or dividends in respect of any such Equity Interest except distributions of cash in the Ordinary Course of Business; provided, however, that an amount equal to any such distribution actually received by the Seller after the Deemed Closing Date and before the Closing Date shall be permitted constitute a Purchase Price Decrease (but only to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policyextent such distribution is not reflected in the Working Capital Adjustment);
(vii) the Company shall not enter into, amend (or waive any of its rights right under) in any material respect, or permit terminate before the acceleration expiration of vesting underthe term thereof, (i) except any material Company Contract other than to the extent expressly permitted under the terms of this Agreement, any provision of any of such contract terminates in accordance with its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreementterms;
(viii) allow any Permits to terminate or lapse other than expirations in accordance with their terms, in which case the Company shall not (i) amend use their commercially reasonable efforts to obtain an extension or permit the adoption replacement of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Personsuch expired Permit;
(ix) cancel or compromise any debt or claim, or settle any action, litigation, complaint, rate filing or administrative proceeding involving payment by the Company shall not make any capital expenditureor to the Company, except for capital expenditures thatwhere the terms of all such settlements, when added to all other capital expenditures made on behalf of cancellations or compromises adversely impact the Company during the Pre-Closing Period, do not exceed $50,000 per monthafter such settlement or agreement;
(x) except as required by applicable Law, make, change or revoke any Tax election relevant to the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractCompany Assets;
(xi) change any accounting practices in any material respect with the Company shall not (i) acquire, lease or license exception of any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of changes in accounting methodologies that have already been agreed upon by the Company in the ordinary course of business Company’s Equity Interest holders, consistent with past practiceits Organizational Documents;
(xii) amend the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)Company’s Organizational Documents;
(xiii) utilize any Company Asset for any purpose other than in connection with the business of the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;as currently conducted; and
(xiv) the Company shall not change enter into any of its methods of accounting contract, agreement or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit commitment to take do any of the actions described in clauses "(v)" through "foregoing.
Appears in 1 contract
Operation of the Company. Between the Agreement Date and the Closing Date, the Company will, and will cause the Bank, to:
(a) During the Pre-Closing Period, the Company will carry on conduct its business solely only in the usual Ordinary Course of Business and ordinary course in compliance with all Legal Requirements, and continue to make all normal expenditures and incur all regular expenses necessary to continue the Bank’s business, consistent with past practice. Without limiting , provided, however, that the generality Company and the Bank shall expressly be permitted to transfer to any third party, including the Principal Stockholder, the following assets with any or no consideration as the board of directors of the foregoingCompany or the Bank, in its sole discretion, shall approve:
(i) the Company shall conduct its business and operations title to any personal property used in the ordinary course and in substantially home office of the same manner as such business and operations have been conducted prior to Chairman of the date of this AgreementCompany;
(ii) any ownership interest in the human resources business known as “HR for You” together with any tangible or intangible property used by the Company shall or the Bank solely in connection with such business listed on Section 4.18 of the Schedules;
(iii) any interest in the lease for the Bank of Xxxxx location currently held by Grant Park Financial Services, LLC; and
(iv) any interest in the real property located in Arcola, Illinois and listed on Section 4.18 of the Schedules;
(b) use reasonable efforts its Best Efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, employees and agents, consultants and other similar representatives and maintain the goodwill of its relations and good will with all suppliers, customers, landlords, creditors, employees employees, agents and other Persons having others who have business relationships with the Companyit;
(iiic) the Company shall keep in full force all insurance policies maintained by it as confer with Acquiror concerning operational matters of the date hereofa material nature;
(ivd) enter into loan transactions only in accordance with sound credit practices and only on terms and conditions that are not materially more favorable than those available to the Company shall cause its officers to report regularly (but borrower from competitive sources in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of Capital Stockarm’s-length transactions, and shall not repurchasein connection therewith, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that from the Company may repurchase Company Common Stock from former employees pursuant Agreement Date to the terms of existing restricted stock purchase agreements);Closing, shall not:
(vi) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to with the extent expressly permitted under prior written consent of Acquiror which consent shall not be unreasonably withheld, enter into any new credit or new lending relationships with any Person and such Person’s Borrowing Affiliate (as defined below) that is not in the terms Ordinary Course of this Agreement, any provision of any of its stock plans, Business; or
(ii) other than incident to a reasonable loan restructuring, extend additional credit to any provision of Person and any agreement evidencing any outstanding Optiondirector or officer of, or any owner of a Material Interest in, such Person (iiiany of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any provision indebtedness to the Bank which constitutes a non-performing loan or against any part of such indebtedness the Bank has established loss reserves or any restricted stock purchase agreementpart of which has been charged-off by the Bank, provided, however, that nothing in this Section 6.2(d)(ii) shall prohibit the Company or the Bank from honoring any contractual obligation set forth on Section 4.17 of the Schedules;
(viiie) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, maintain an allowance for possible loan and lease losses which is adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to loans previously charged off, on loans outstanding (including accrued interest receivable), and charge-off any loans or leases that would be deemed uncollectible in accordance with GAAP or any Legal Requirements and place on non-accrual any loans or leases that are past due greater than ninety (ii90) amend or prematurely terminate, or waive any material right or remedy under, any such contractdays;
(xif) maintain all of its assets necessary for the conduct of its business in good operating condition and repair, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain policies of insurance upon its assets and with respect to the conduct of its business in amounts and kinds comparable to that in effect on the Agreement Date and pay all premiums on such policies when due;
(g) not buy or sell any security held, or intended to be held, for investment, but such restriction shall not affect the buying and selling by the Bank of federal funds or the reinvestment of dividends paid on any securities owned by the Company shall or the Bank as of the Agreement Date;
(h) except as permitted in or required by Section 6.18 below, not declare or pay any dividends or make any other similar distributions of cash or property to any of the Company’s or the Bank’s directors, officers, employees or shareholders, other than regular salary or other earned compensation;
(i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset file in a timely manner all required filings with all Regulatory Authorities and cause such filings to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company be true and correct in the ordinary course of business consistent with past practiceall material respects;
(xiij) record and carry on its books and records the Company shall not (i) lend money net realizable value of OREO, with such value to any Person (except that be supported by reasonable documentation of the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)same;
(xiiik) maintain its books, accounts and records in the Company shall not (i) establishOrdinary Course of Business, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000on a basis consistent with prior years;
(xivl) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax electioncomply with all Legal Requirements and Contracts; and
(xvim) report periodically to Acquiror concerning the Company shall not agree or commit to take any status of the actions described in clauses "(v)" through "its business, operations and finances.
Appears in 1 contract
Operation of the Company. (a) During Except as specifically provided in this Agreement, between the Pre-date of this Agreement and the Closing PeriodDate, the Company will carry on shall:
(i) maintain its business solely books of account and records in the usual and ordinary manner, and in conformity with its past practices;
(ii) pay accounts payable and other obligations when they become due and payable in the ordinary course of business consistent with past practices except to the extent disputed in good faith;
(iii) conduct its business, if any, in the ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner practices, or as such business and operations have been conducted prior to the date of required by this Agreement;
(ii) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) pay all taxes when due and file all Company Tax Returns on or before the Company shall cause its officers due date therefor except to report regularly (but the extent disputed in no event less frequently than weekly) to nStor concerning the status of the Company's businessgood faith;
(v) the Company shall not declare, accrue, set aside make appropriate provisions in its books of account and records for taxes relating to its operations during such period (regardless of whether such taxes are required to be reflected in a tax return having a due date on or pay any dividend or make any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant prior to the terms of existing restricted stock purchase agreementsClosing Date);
(vi) withhold all taxes required to be withheld and remitted by or on behalf of the Company in connection with amounts paid or owing to any Company personnel or other person, and pay such taxes to the proper governmental authority or set aside such taxes in accounts for such purpose;
(vii) make all required filings on a timely basis with the SEC or anyother state, federal or local regulatory body, including, without limitation, making all filings under the Exchange Act, on a timely basis so as to maintain Company's status as a reporting Company in good standing under the Exchange Act; and
(viii) comply with the listing requirements of, and take all steps reasonably necessary to maintain Company's listing on, the OTC Bulletin Board.
(b) Without the prior written consent of EHOME, between the date of this Agreement and the Closing Date (or termination of this Agreement), the Company shall not sellnot:
(i) issue or promise to issue any capital stock or any options, warrants or other rights to subscribe for or purchase any capital stock or any securities convertible into or exchangeable or exercisable for, or rights to purchase or otherwise acquire, any shares of the capital stock of the Company;
(ii) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of (i) any Capital Stock other securities in respect of, in lieu of or other security, (ii) any option or right to acquire any Capital Stock or other securityin substitution for shares of its capital stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock;
(iii) enter into any instrument convertible into material contract or exchangeable for any Capital Stock commitment, or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or otherwise modify or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plansmaterial contracts, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend violate or prematurely terminate, or waive any material right or remedy under, terminate any such contractmaterial contracts;
(xiiv) the Company shall not (i) acquiretransfer, lease assign or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any person or entity any rights to its intellectual property other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company than in the ordinary course of business consistent with past practice;
(xiiv) the Company shall not (i) lend money enter into or amend any agreements pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any Person of its products or intellectual property;
(vi) adopt or amend any employee benefit or stock purchase or option plan;
(vii) except as may be required or reasonably necessary in order to complete the transactions contemplated by this Agreement, agree to borrow any funds, incur any indebtedness or directly or indirectly guarantee or agree to guarantee the obligations of others, or draw or borrow on any lines of credit that may be available to the Company may Company;
(viii) place or allow to be placed a lien or encumbrance on any of the assets of the Company;
(ix) pay, discharge or satisfy in an amount in excess of $5,000 in any one case or $30,000 in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) arising other than in the ordinary course of business, other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Company's financial statements;
(x) make routine travel advances to employees any capital expenditures, capital additions or capital improvements except in the ordinary course of business and may, consistent with past practice;
(xi) materially reduce the amount of any material insurance coverage provided by existing insurance policies;
(xii) terminate or waive any right of substantial value;
(xiii) commence a lawsuit other than (1) for the routine collection of bills, (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 past practicesbusiness, allow employees provided that it consults with Company prior to acquire Company Common Stock in exchange for promissory notes upon exercise the filing of Options)such a suit, or (ii3) incur for a breach of this Agreement;
(xiv) sell, lease, license or guarantee otherwise dispose of or encumber any indebtedness for borrowed money (of its properties or assets which are material, individually or in the aggregate, to its business, except that the Company may make routine borrowings in the ordinary course of business under its line of credit consistent with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respectpast practice;
(xv) commit any act or omit to do any act which will cause a breach of this Agreement or any other material agreement, contract, lease or commitment to which the Company shall not make any Tax election; andis party;
(xvi) violate any law or governmental approval, including, without limitation any federal or state securities laws;
(xvii) make any loan, advance, distribution or payment of any type or to any Person other than as contemplated by this Agreement;
(xviii) amend its Articles of Incorporation or Bylaws;
(xix) except as contemplated by this Agreement, consolidate with, or agree to merge or consolidate with, or purchase substantially all of the Company shall not assets of, or otherwise acquire any business or any Person or division thereof;
(xx) make any tax election or settle or compromise any tax liability other than in the ordinary course of business consistent with past practices;
(xxi) lease or purchase or agree to lease or commit purchase any assets or properties; or
(xxii) take, or agree in writing or otherwise to take take, any action which would make any of the actions described its representations or warranties contained in clauses "(v)" through "this Agreement untrue or incorrect in any material respect or prevent it from performing or cause it not to perform its covenants hereunder in any material respect.
Appears in 1 contract
Operation of the Company. (a) During From the Pre-date hereof until the earlier of the Closing Periodor termination of this Agreement in accordance with Section 9.1, except as expressly contemplated or permitted by this Agreement, as approved in writing by Purchaser, as required by Applicable Law, or as set forth on Schedule 5.1(c), the Company will carry on its business solely in shall, and Seller shall cause the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
Company to: (i) the Company shall conduct operate and maintain its assets, properties and business and operations in the ordinary course and in substantially the same manner as such business and operations in which they have been conducted prior to operated and maintained before the date of this Agreement;
hereof in all material respects, (ii) retain all material permits, licenses and approvals necessary for the Company shall to lawfully conduct its business in the manner currently conducted; (iii) use commercially reasonable efforts to preserve intact its current the Company’s business organization, keep available the services of its current officers, directors, employees, agents, consultants organization and other similar representatives assets and maintain its rights and existing relations and good will with all customers, suppliers, customers, landlords, creditorsvendors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers associates, subject to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements);
(vi) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than changes in the ordinary course of business consistent with past practice; (iv) not enter into any new line of business or materially change its leasing, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contract;
(xi) the Company shall not (i) acquire, lease or license any right underwriting or other asset from operating policies, except as required by Applicable Laws or policies imposed by any other PersonGovernmental Authority; (v) not issue, (ii) sell or otherwise dispose permit to become outstanding, or authorize the creation of, or lease or license, any right additional Shares or other asset Equity Interests in the Company, enter into any agreement with respect to any other Personthe foregoing, or effect any recapitalization, reclassification, stock split, or similar change in capitalization of the Company; (iiivi) waive not enter into, modify, amend, renew or relinquish terminate any rightemployment, consulting, severance, retention, change in control, or similar agreements or arrangements with any director, consultant, officer or employee of the Company, or hire or engage any full-time employee or consultant, in each case other than as replacements for positions existing on the date hereof, or grant any salary or wage increase or bonus or increase any employee benefit (including incentive or bonus payments), except for assets acquired, leased, licensed or disposed of changes that are required by the Company Applicable Law and except for changes in the ordinary course of business consistent with past practice;
; (vii) not enter into, establish, adopt, amend, modify or terminate (except as may be required by Applicable Law, as contemplated by this Agreement, or pursuant to the regular annual renewal of insurance contracts) any Benefit Plan or take any action to accelerate the payment of benefits or the vesting or exercisability of any restricted stock, phantom stock or other compensation or benefits payable thereunder; (viii) not sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any Person, or cancel, release or assign any indebtedness of any Person or any claims against any Person, in each case other than in the ordinary course, consistent with past practices; (ix) not acquire all or any material portion of the assets, business, properties or Equity Interests of any other Person; (x) not amend or modify the Company’s Organizational Document or Operating Document; (xi) not implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP; (xii) the Company shall not (i) lend money to terminate, amend, or waive any Person (provision of any material Contract, or enter into any new material Contract, in each case except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practicespractice; (xiii) not make, allow employees or commit to acquire Company Common Stock make, any capital expenditures that exceed $50,000 in exchange for promissory notes upon exercise of Optionsthe aggregate; (xiv) not fail to prepare or file or cause to be prepared or filed in a timely manner consistent with past practice (including with respect to the jurisdictions in which such Tax Returns are filed) all Tax Returns that are required to be filed (with extensions) before the Closing Date, fail to timely pay any Tax due (whether or not required to be shown on any such Tax Returns), make any Tax election other than in a manner consistent with past practice, or change or revoke any Tax election or Tax accounting method, file any amended Tax Return, or settle any Tax claim or assessment or consent to the extension or waiver of any statute of limitations with respect to Taxes (iior offer or agree to do any of the foregoing or surrender its rights to do any of the foregoing or to claim any refund of Taxes or file any amended Tax Return); (xv) incur not take or guarantee allow any indebtedness for borrowed money action that would result in the termination of the Company’s status as a validly electing S corporation within the meaning of Section 1361(a)(1) of the Code; and (except that the Company may make routine borrowings xvi) not otherwise engage in any material transaction outside of the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take any of the actions described in clauses "(v)" through "business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Civista Bancshares, Inc.)
Operation of the Company. (a) During S BUSINESS. Unless permitted by Purchaser, during the Pre-Closing Period, the Company will carry on its business solely in the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(ia) the each Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
(iib) the each Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants officers and other similar representatives employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iiic) the each Company shall keep in full force all insurance policies maintained by it as identified in Part 2.17 of the date hereofDisclosure Schedule or procure substantial similar policies;
(ivd) the each Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor Purchaser concerning the status of the Company's business;
(ve) the neither Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of Capital Stockcapital stock or partnership interest, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock capital stock, partnership interest or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements)securities;
(vif) the neither Company shall not sell, issue or authorize the issuance of (i) any Capital Stock capital stock, partnership interest or other security, (ii) any option or right to acquire any Capital Stock capital stock, partnership interest or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock capital stock, partnership interest or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policysecurity;
(viig) the neither Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles Certificate of organization Incorporation or bylawsbylaws or partnership agreement, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, Acquisition Transaction;
(iiih) neither Company shall form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other PersonEntity;
(ixi) the neither Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company Companies during the Pre-Closing Period, do not on average exceed $50,000 20,000 per month;
(xj) the neither Company shall not (i) enter into, or permit any of the material assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practiceEncumbrance, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractMaterial Contract;
(xik) except in the ordinary course of its business, neither Company shall not shall: (1)
(i) acquire, lease or license any right or other asset from any other PersonPerson (except as otherwise required under this Agreement), (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in pursuant to Contracts that are not Material Contracts or (2) enter into any transaction material to the ordinary course of business consistent with past practiceor the Purchased Assets;
(xiil) the neither Company shall not (i) lend money to any Person (except that the Company Companies may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), business) or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)money;
(xiiim) the neither Company shall not (i) establish, adopt or amend any employee benefit planEmployee Benefit Plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,00050,000;
(xivn) the neither Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xvo) the neither Company shall not make any Tax election; and;
(xvip) the neither Company shall not commence or settle any material Legal Proceeding;
(q) neither Company shall agree or commit to take any of the actions described in clauses "(ve)" through "(p)" above.
Appears in 1 contract
Operation of the Company. (a) During the Pre-Closing PeriodExcept as expressly contemplated by this Agreement or as contemplated by Schedule 5(c), the Seller will cause the Company not to engage in any practice, take any action or enter into any transaction outside the Ordinary Course of Business without the prior consent of the Buyer (which consent shall not be unreasonably withheld or delayed). Subject to compliance with applicable Law, the Seller will carry confer on a regular and frequent basis (generally expected to be at least twice per month) with one or more representatives of the Buyer to report on operational matters and the general status of the Company and its business solely in operations and will promptly provide to the usual and ordinary course consistent Buyer or its representatives copies of all filings it makes with past practicerespect to the Company with any Governmental Authority during such period. Without limiting the generality of the foregoing, without the consent of the Buyer (which consent, if requested by the Seller, shall not be unreasonably withheld or delayed), during the period commencing on the date of this Agreement and continuing to the Closing Date, except as expressly contemplated by this Agreement or by Schedule 5(c), the Seller shall cause the Company not to do or agree to do any of the following:
(i) the Company shall conduct sell, lease or otherwise dispose of any of its business and operations property or assets, in each case, other than sales of services in the ordinary course Ordinary Course of Business and in substantially the same manner as such business and operations have been conducted prior to the date dispositions of this Agreementobsolete, damaged or defective parts, supplies or inventory;
(ii) acquire (including by merger, consolidation or acquisition of Equity Interest or assets) any Person, make an investment in or a loan to any Person (other than loans to employees in amounts not to exceed in the Company shall use reasonable efforts aggregate outstanding amount $1.0 million and advances of credit to preserve intact its current business organizationcustomers in the Ordinary Course of Business), keep available or acquire (including by making capital expenditures or leasing (other than leases of equipment made in the services Ordinary Course of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will Business)) any assets with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Companyan aggregate value in excess of $1.0 million;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereofenter into any joint venture, partnership or similar arrangement;
(iv) incur or issue any Indebtedness or debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the Company shall cause its officers to report regularly Obligations of any Person, or make any loans or advances, or delay or postpone beyond the applicable due date the payment of accounts payable or other liabilities other than (but A) endorsements of checks for deposit, (B) causing the issuance of letters of credit, performance bonds and similar Obligations in no event less frequently than weeklythe Ordinary Course of Business consistent with past practice, (C) to nStor concerning capital lease Obligations that do not exceed $1.0 million, individually or in the status aggregate, and (D) repayments, in whole or in part, of working capital borrowings outside the Company's businessOrdinary Course of Business;
(v) cause or allow any part of the Company shall not declareAssets to become subject to an Encumbrance, accrue, set aside or pay any dividend or make any except for Permitted Encumbrances and other distribution Encumbrances identified in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreementsSchedule 4(e)(i);
(vi) the Company shall not issue, sell, issue pledge, dispose of, grant, encumber or authorize the issuance issuance, sale, pledge, disposition, grant, repurchase, redemption or encumbrance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that Equity Interest in the Company shall be permitted or any Commitments with respect to issue any Equity Interest in the Company Common Stock to employees upon or declare, set aside or make any distributions or dividends in respect of any such Equity Interest except distributions of cash in the Ordinary Course of Business and dividends or distributions of the proceeds from the sales of ECam and South Pass in accordance with the exercise of outstanding Options the Interest Exclusion Option to the extent such amounts are excluded from Working Capital (Actual); provided, however, that an amount equal to any such distribution actually received by the Seller after the Deemed Closing Date and Warrants and before the Closing Date shall constitute a Purchase Price Decrease (but only to new employees consistent with its existing hiring policythe extent such distribution is not reflected in the Working Capital Adjustment);
(vii) the Company shall not enter into, amend (or waive any of its rights right under) in any material respect, or permit terminate before the acceleration expiration of vesting underthe term thereof, (i) except any material Company Contract other than to the extent expressly permitted under the terms of this Agreement, any provision of any of such contract terminates in accordance with its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreementterms;
(viii) allow any Permits to terminate or lapse other than expirations in accordance with their terms, in which case the Company shall not (i) amend use their commercially reasonable efforts to obtain an extension or permit the adoption replacement of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Personsuch expired Permit;
(ix) cancel or compromise any debt or claim, or settle any action, litigation, complaint, rate filing or administrative proceeding involving payment by the Company shall not make any capital expenditureor to the Company, except for capital expenditures thatwhere the terms of all such settlements, when added to all other capital expenditures made on behalf of cancellations or compromises adversely impact the Company during the Pre-Closing Period, do not exceed $50,000 per monthafter such settlement or agreement;
(x) except as required by applicable Law, make, change or revoke any Tax election relevant to the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractCompany Assets;
(xi) change any accounting practices in any material respect with the Company shall not (i) acquire, lease or license exception of any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of changes in accounting methodologies that have already been agreed upon by the Company in the ordinary course of business Company’s Equity Interest holders, consistent with past practiceits Organizational Documents;
(xii) amend the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)Company’s Organizational Documents;
(xiii) utilize any Company Asset for any purpose other than in connection with the business of the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;as currently conducted; and
(xiv) the Company shall not change enter into any of its methods of accounting contract, agreement or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit commitment to take do any of the actions described in clauses "(v)" through "foregoing.
Appears in 1 contract
Operation of the Company. After Closing, as long as Shareholders are or may become entitled to TRC Shares pursuant to the Initial Exchange under Section 2.2 (a) During (ii) and Earnout Exchange under Section 2.2(c) of this Agreement and so long as annual EBIT for the Pre-Closing PeriodCompany exceeds 75% of the targets set forth under Section 2.2 (b) above for the indicated Earnout Periods, (a) the Company will carry on continue to operate its business solely substantially as it has been operated before the Closing; (b) the Company will not merge or consolidate with another entity or be dissolved; (c) the Company will be provided adequate capital for its operations and projected expansion; (d) there will be a five-member management committee (the "Management Committee") composed of Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxxx, F. Xxxxxx Xxxxxxxxx, and two (2) members appointed by Parent, or their successors, which will meet at least quarterly to discuss overall policy objectives and guidance and direction for the Company [such Management Committee shall be a consultative body and will operate in the usual spirit of cooperation and ordinary course consistent with past practice. Without limiting consensus without the generality need for formal voting, provided however, that to the extent any matter is submitted to a vote it will require a two-thirds (2/3) majority for approval]; (e) after the discussion of the foregoing:
Management Committee, Xxxxxx X. Xxxxxx (or his designee) shall have the sole right to hire and fire employees of the Company; (f) neither the Parent nor any of its subsidiaries shall solicit or hire an employee of the Company to become an employee of the Parent or any of its subsidiaries; (g) the Parent shall provide the Company with sufficient financial and other resources to pursue reasonable business opportunities in the Company's areas of expertise; (h) except as provided in the Agreement or in the Employment Agreements, there shall not be any material change in the compensation paid or benefits provided to any Seller without the approval of Xxxxxx X. Xxxxxx; and (i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date name of this Agreement;
(ii) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside be changed without the prior written consent of Xxxxxx X. Xxxxxx or pay any dividend or make any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except his designee; provided that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements);
(vi) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization name may be changed without Xxxxxx X. Xxxxxx'x consent to include "TRC" in the Company's present name. Until Xxxxxx X. Xxxxxx designates one or bylawsmore successors, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company he shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf serve as Chief Executive Officer of the Company during the Pre-Closing Periodwith authority and responsibility for strategy and policy, do not exceed $50,000 per month;
(x) and Xxxx X. Xxxxxxxxx shall serve as Chief Operating Officer of the Company shall not (i) enter into, or permit any with responsibility for the day-to-day operations of the assets owned or used by it to become bound by, Company. In the event EBIT for any contract other than in the ordinary course of business consistent with past practice, or fiscal year falls below seventy-five per cent (ii75%) amend or prematurely terminate, or waive any material right or remedy under, any such contract;
(xi) the Company shall not (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business consistent with past practice;
(xii) the Company shall not (i) lend money to any Person (except that the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.);
(xiii) the Company shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wagesTargets specified in Section 2. 2 (c) above for the indicated Earnout Periods, salarythe foregoing provisions may at Parent's option no longer apply, commissions, fringe benefits or other compensation or remuneration payable to, any of and Parent may take whatever steps Parent in its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected sole discretion deems necessary to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take any of the actions described in clauses "(v)" through "operate Company.
Appears in 1 contract
Operation of the Company. (a) During the Pre‑Closing Period, except (w) as required or contemplated under this Agreement, (x) as required by applicable Legal Requirements or to the extent necessary to comply with obligations under any Material Contract in effect as of the date hereof, (y) with the written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, or (z) as set forth in Section 4.2 of the Company Disclosure Schedule, the Company will, and will cause each of its Subsidiaries to, use its respective commercially reasonable efforts to (A) conduct its business in the ordinary course in all material respects; (B) maintain its existence in good standing pursuant to applicable Legal Requirement; (C) preserve intact its material assets, properties, Contracts or other material legally binding understanding, licenses and business organizations; and (D) preserve the current relationships with material customers, vendors, distributors, partners, lessors, licensors, creditors, contracts and other Persons with which the Company and its Subsidiaries have material business relations; provided, that (1) no action by, or the failure to act of, the Company or any of its Subsidiaries to the extent required to comply with Section 4.2(b) shall constitute a breach of this Section 4.2(a), and (2) any failure to take any action prohibited by Section 4.2(b) shall not be deemed a breach of this Section 4.2(a).
(b) During the Pre-Closing Period, except (w) as required or contemplated under this Agreement, (x) as required by applicable Legal Requirements, (y) with the written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, or (z) as set forth in Section 4.2 of the Company will carry on Disclosure Schedule, the Company shall not, and shall cause its business solely in the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoingSubsidiaries not to:
(i) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the (A) establish a record date of this Agreement;
(ii) the Company shall use reasonable efforts to preserve intact its current business organizationfor, keep available the services of its current officers, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrueset aside, set aside make or pay any dividend or make any other constructive, deemed or actual distribution in respect of any shares of Capital its capital stock (including the Company Common Stock), and shall not whether payable in cash, stock, property or otherwise, except for dividends or other distributions by a Subsidiary of the Company to the Company, or (B) repurchase, redeem or otherwise reacquire any of its shares of Capital Stock or other securities capital stock (except that the Company may repurchase including any Company Common Stock), or any rights, warrants or options to acquire any shares of its capital stock, other than: (1) repurchases or reacquisitions of Shares outstanding as of the date hereof pursuant to the Company’s right (under written commitments in effect as of the date hereof) to purchase or reacquire Shares held by a Company Associate only upon termination of such associate’s employment or engagement by the Company; (2) repurchases of Company Stock from former employees Awards (or shares of capital stock issued upon the exercise or vesting thereof) outstanding on the date hereof (in cancellation thereof) pursuant to the terms of existing restricted stock any such Company Stock Award (in effect as of the date hereof) between the Company and a Company Associate or member of the Company Board only upon termination of such Person’s employment or engagement by the Company; (3) in connection with withholding to satisfy the exercise price or Tax obligations with respect to Company Stock Awards to the extent required under the terms of any such Company Stock Award (in effect as of the date hereof); (4) the purchase agreements)of Shares in accordance with the terms of the Company ESPP in effect as of the date hereof; or (5) pursuant to transactions solely between or among the Company and its Subsidiaries;
(viii) adjust, split, reverse split, combine, subdivide or reclassify any shares of its capital stock (including the Company shall not Common Stock) or other equity interests;
(iii) sell, issue issue, grant, deliver, pledge, transfer, dispose of, encumber or authorize the issuance issuance, sale, delivery, pledge, transfer, disposal of, encumbrance or grant by the Company or any of its Subsidiaries (other than pursuant to agreements in effect as of the date of this Agreement) of (iA) any Capital Stock capital stock, equity interest or other securitysecurity of the Company or any of its Subsidiaries, (iiB) any option option, call, warrant, restricted securities or right to acquire any Capital Stock capital stock, equity interest or other security, security of the Company or any of its Subsidiaries or (iiiC) any instrument convertible into or exchangeable for any Capital Stock capital stock, equity interest or other security of the Company or any of its Subsidiaries (except that the Company shall may (1) issue Shares as required to be permitted to issue issued in accordance with the Company Common Equity Plans in effect as of the date hereof and the terms of the applicable Company Stock to employees Award in effect as of the date hereof upon the settlement of RSUs or PSUs outstanding on the date of this Agreement, or upon the exercise of Company Options outstanding Options as of the date of this Agreement, (2) issue Shares in respect of any awards outstanding under the Company ESPP in respect of the Current ESPP Offering Period, (3) to the extent required under the terms of an applicable Company Stock Award in effect as of the date hereof, sell shares upon exercise, settlement or sales, as applicable, of Company Options, RSUs, or PSUs if necessary to effectuate a direction of the holder upon exercise, settlement or sales to satisfy, as applicable, the exercise price or Tax obligations with respect to Company Options, RSUs, or PSUs, (4) authorize purchases of shares under a Rule 10b5-1 plan, (5) issue Shares, cash or any combination of Shares and Warrants cash pursuant to the terms of the 2029 Indenture and to new employees consistent with (6) issue such securities in transactions solely between or among the Company and its existing hiring policySubsidiaries;
(viiiv) except as required by the Company shall not terms of any Employee Plan or as otherwise permitted under Section 4.2(b)(i) or Section 4.2(b)(iii), (i) establish, adopt, terminate or amend any Employee Plan (or any plan, program, arrangement, practice or agreement that would be an Employee Plan if it were in existence on the date hereof), or amend or waive any of its rights under, or permit accelerate the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plansthe Employee Plans (or any plan, program, arrangement, practice or agreement that would be an Employee Plan if it were in existence on the date hereof), (ii) provide increases in salary, wages or benefits to any provision current or former Company Associate, other than increases in base compensation in the ordinary course of business in respect of any non-executive officer employee whose annual base compensation does not equal or exceed $250,000 after giving effect to such increase; (iii) grant to any current or former Company Associate any equity or equity-based awards under the Company Equity Plans or otherwise; or (iv) grant to any current or former Company Associate any right to reimbursement, indemnification or payment for any Taxes incurred under Section 409A or Section 4999 of the Code (except that the Company and its Subsidiaries may: (A) amend any Employee Plans to the extent required by applicable Legal Requirements; (B) replace, renew or extend a broadly applicable Employee Plan that provides health and welfare benefits in the ordinary course of business, provided such replacement, renewal or extension does not materially increase the cost of such Employee Plan or benefits provided under such Employee Plan based on the cost on the date of this Agreement, and (C) make annual or quarterly bonus or commission payments to the extent earned in accordance with the terms of the Employee Plans set forth on Section 2.18(e) of the Company Disclosure Schedule;
(v) (A) enter into (1) any change-of-control agreement evidencing with any outstanding Optionexecutive officer, employee or independent contractor or (2) any retention agreement with any executive officer, or (iiiB) enter into (1) any provision employment, severance or other material agreement with any executive officer or director or (2) any employment or severance agreement with any non‑executive officer employee with an annual base salary equal to or greater than $250,000 or any consulting agreement with an independent contractors with an annual base compensation greater than $250,000 or (C) hire, engage, or terminate the employment or engagement of any restricted stock purchase agreementemployee with an annual base salary equal to or in excess of $250,000 or independent contractor with an annual base compensation equal to or in excess of $250,000;
(viiivi) the Company shall not (i) amend, amend and restate or permit the adoption of any amendment or amendment and restatement to the Company's articles its Certificate of organization Incorporation or bylaws, bylaws or other charter or organizational documents;
(iivii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest business or other interest Entity (including by merger, consolidation or acquisition of stock or assets) for consideration that is individually in excess of $1,000,000 or in the aggregate in excess of $5,000,000, except for any other entityacquisition of materials from suppliers in the ordinary course of business;
(viii) make any loans, advances or capital contributions to, or (iv) mergeinvestments in, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of (A) loans solely between or among the Company during the Pre-Closing Periodand its Subsidiaries, do not exceed $50,000 per month;
(xB) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract other than advances for employee expenses in the ordinary course of business consistent with past practice, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contract;
(xiC) the Company shall not (i) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed extension of by the Company trade credit in the ordinary course of business business, consistent with past practice;
(xiiix) enter into any joint venture, partnership, limited liability company, strategic alliance, profit sharing or similar arrangement
(x) make or authorize any capital expenditure except (A) in accordance with the Company’s capital expenditure budget as set forth on Section 4.2(b)(x) on the Company shall Disclosure Schedule or (B) capital expenditures not addressed by the foregoing clause (iA) lend money to that do not exceed $500,000 individually or $2,000,000 in the aggregate during any Person fiscal year;
(xi) sell, lease, transfer, license, or otherwise dispose of or assign any material portion of its tangible properties or tangible assets for consideration that is individually in excess of $500,000 or in the aggregate in excess of $2,000,000, except that the Company may make routine travel advances to employees for and excluding (A) dispositions in the ordinary course of business (including selling inventory and mayentering into non‑exclusive license agreements with customers and service providers in the ordinary course of business), consistent with (B) transfers between or among the Company and its past practicesSubsidiaries, allow employees to acquire (C) dispositions of obsolete, surplus or worn out tangible assets that are no longer useful in the conduct of the business of the Company Common Stock in exchange for promissory notes upon exercise of Options)and its Subsidiaries, or (iiD) voluntary terminations or surrenders of leases or subleases of real property in the ordinary course of business;
(xii) create, assume, guarantee, incur any Indebtedness or guarantee issue any indebtedness debt securities after the date of this Agreement except for borrowed money and excluding (except that A) Indebtedness reasonably necessary to finance capital expenditures permitted under Section 4.2(b)(x), and (B) borrowings by the Company may make of Indebtedness of the Company or any of its Subsidiaries under its existing facilities;
(xiii) sell, assign, transfer, lease, license, encumber, abandon or permit to lapse any of its material Intellectual Property;
(xiv) except in the ordinary course of business, make, change, or revoke any material Tax election or settle or compromise any material Tax claim, amend any material Tax Return, affirmatively surrender any right to claim a refund of material Taxes, or enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) in respect of material Taxes with any Taxing Authority;
(xv) commence any Legal Proceeding, except with respect to: (A) routine borrowings matters in the ordinary course of business under pursuant to which the amounts at issue do not exceed $2,500,000; (B) in such cases where the Company reasonably determines in good faith that the failure to commence suit would result in a material impairment of a valuable aspect of the businesses of the Company and its line Subsidiaries (provided, that the Company consults with Parent and considers the views and comments of credit Parent with Xxxxx Fargo Creditrespect to such Legal Proceedings prior to commencement thereof); or (C) in connection with a breach of this Agreement or any other agreements contemplated hereby;
(xvi) settle, Inc.release, waive or compromise any Legal Proceeding or other claim (or threatened Legal Proceeding or other claim), other than (A) any Legal Proceeding relating to a breach of this Agreement or any other agreements contemplated hereby, (B) a settlement in connection with or related to any matter disclosed in Section 2.13 of the Company Disclosure Schedule that results solely in a monetary obligation involving only the payment of monies by the Company and its Subsidiaries of not more than $2,500,000 in the aggregate; (C) a settlement that results solely in a monetary obligation involving only the payment of monies by the Company and its Subsidiaries of not more than $500,000 in the aggregate or any material injunctive or equitable relief, or imposing material restrictions, on the business activities of the Company and its Subsidiaries, taken as a whole; or (D) a settlement that results in no monetary obligation of the Company or any of its Subsidiaries or the receipt of payment by the Company or its Subsidiaries; provided, that no such settlement may involve any material injunctive or equitable relief, or impose material restrictions, on the business activities of the Company and its Subsidiaries, taken as a whole;
(xvii) enter into, negotiate, amend or extend any collective bargaining agreement or other agreement with any labor organization or works council (except to the extent required by applicable Legal Requirements);
(xiiixviii) take any action that would constitute a “mass layoff” or “plant closing” within the meaning of, or would otherwise trigger notice requirements under, the Worker Adjustment and Retraining Notification Act of 1988 or any similar Legal Requirement;
(xix) adopt a plan or agreement of complete or partial liquidation or dissolution, consolidation, restructuring, recapitalization or other reorganization of the Company shall not and its Subsidiaries
(ixx) establishabandon, adopt withdraw, terminate, suspend, abrogate, amend or modify in any material respect any Governmental Authorizations in a manner which is adverse to the Company and its Subsidiaries;
(xxi) enter into any new line of business material to the Company and its Subsidiaries, taken as a whole, or form a new Subsidiary of the Company;
(xxii) cancel, reduce, terminate or fail to maintain in effect material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses;
(xxiii) modify or amend any employee benefit planrights under any Material Contract in a manner that is adverse in any material respect to the Company and its Subsidiaries, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment totaken as a whole, or increase the amount of the wagesterminate any Material Contract (other than any Material Contract that has expired in accordance with its terms);
(xxiv) change its fiscal year, salary, commissions, fringe benefits or other compensation or remuneration payable to, revalue any of its directors, officers material assets or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its material financial, actuarial, reserving or Tax accounting methods of accounting or accounting practices in any material respect;, except as required by GAAP or Legal Requirements; or
(xvxxv) the Company shall not make authorize any Tax election; and
(xvi) the Company shall not of, or agree or commit to take take, any of the actions described in clauses "this Section 4.2(b).
(v)" c) As soon as reasonably practicable following the date hereof, the Company shall use reasonable best efforts to reasonably cooperate with Purchaser in order for the Company to purchase (or finance) an earthquake insurance policy covering building, property and business interruption for applicable Company properties through "a nationally recognized insurance carrier or carriers; provided that the Company shall not be required to spend more than $2,500,000 to purchase such coverage. Subject to the foregoing, such reasonable cooperation shall include coordinating on the amount of such insurance, taking into account the business of the Company and what is reasonably available in the market. Notwithstanding the foregoing, nothing contained herein shall give to Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its and its Subsidiaries’ respective operations.
Appears in 1 contract
Operation of the Company. Pending Closing. From the date hereof through the Effective Date, the Company and the Shareholders shall, except as otherwise provided herein and except as otherwise consented to by PJAM:
(a) During continue the Pre-Closing Period, the Company will carry on its business solely in the usual and ordinary course consistent with past practice. Without limiting the generality of the foregoing:
(i) the Company shall conduct its Company's business and operations substantially in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
(ii) the Company shall use reasonable efforts to preserve intact its current business organizationheretofore, keep available the services of its current officersnot undertake any transactions or enter into any contracts, directors, employees, agents, consultants and other similar representatives and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(iii) the Company shall keep in full force all insurance policies maintained by it as of the date hereof;
(iv) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrue, set aside commitments or pay any dividend or make any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements);
(vi) the Company shall not sell, issue or authorize the issuance of (i) any Capital Stock or other security, (ii) any option or right to acquire any Capital Stock or other security, or (iii) any instrument convertible into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract arrangements other than in the ordinary course of business consistent with its past practicepractices, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any such contractand use their reasonable efforts to preserve the Company's present business and organization;
(xib) refrain from disposing of or encumbering or agreeing to dispose of or encumber any of the Company shall not Company's assets other than (i1) acquire, lease or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any right, except for assets acquired, leased, licensed or disposed of by the Company inventory sold in the ordinary course of business consistent with past practicepractices, (2) disposition of worn out or obsolete assets which have been replaced with assets of equal or greater value, and (3) encumbrances of assets to secure the debt described in Section 5.1(o);
(xiic) maintain the Company shall Licenses and not take any action, or refrain from taking any action, which could cause any of the Licenses to be revoked, restricted or suspended;
(id) lend money not make any commitment for capital expenditure in excess of $10,000;
(e) take all commercially reasonable efforts necessary to maintain its tangible assets for the Surviving Corporation's use and benefit after the Effective Date (normal wear and tear excepted);
(f) maintain its existing insurance coverage, subject to variations in amounts required by ordinary operations;
(g) not terminate or amend, or suffer the termination or amendment of, any Person (Material Contract or License except that the Company may make routine travel advances to employees in the ordinary course of business business;
(h) not knowingly take or omit to take any action which would cause any of the representations and may, consistent with its past practices, allow employees warranties made by it herein to acquire Company Common Stock in exchange for promissory notes upon exercise of Options)be untrue or incorrect;
(i) not declare or pay any dividend on, or make any distribution to the holders of, any of the Company Shares, except for distributions in an aggregate amount not to exceed $450,000, plus earnings of the Company otherwise taxable to the Shareholders in respect to the period January 1, 1997 to May 26, 1997 or, if the Closing shall not have occurred on or before June 6, 1997, to the Effective Date;
(iij) not change its Articles of Incorporation or By-Laws;
(k) maintain the Company's existence;
(l) not authorize for issue or issue any additional shares of capital stock or securities or change or otherwise adjust the number of shares of capital stock outstanding;
(m) not make any investment in any other Person, or enter into any material lease, license, contract or other instrument;
(n) not increase the rate or change the nature of the compensation payable to the Company's employees, officers or directors; and
(o) not incur or guarantee agree to incur any indebtedness for borrowed money money, except for indebtedness not to exceed the amounts permitted to be distributed pursuant to Section 5.1(i) above (except that on terms subject to the Company may make routine borrowings in the ordinary course prior approval of business under its line of credit with Xxxxx Fargo CreditPJAM, Inc.);
(xiii) the Company which approval shall not (i) establish, adopt or amend any employee benefit plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000;
(xiv) the Company shall not change any of its methods of accounting or accounting practices in any material respect;
(xv) the Company shall not make any Tax election; and
(xvi) the Company shall not agree or commit to take any of the actions described in clauses "(vbe unreasonably withheld)" through ".
Appears in 1 contract
Samples: Merger Agreement (Pj America Inc)
Operation of the Company. (a) During The Company agrees that, between the Pre-Closing Perioddate of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, the businesses of the Company will carry on its business solely in and the usual UK Subsidiary shall be conducted only in, and the Company and the UK Subsidiary shall not take any action except in, the ordinary course of business and in a manner consistent with past practice. Without limiting the generality of the foregoing:
(i) the Company shall conduct its business ; and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
(ii) the Company shall use its commercially reasonable efforts efforts, consistent with past practices of the Company, to preserve substantially intact its current the business organizationorganization of the Company and the UK Subsidiary, to keep available the services of its the current officers, directorsemployees and consultants of the Company and the UK Subsidiary and to preserve the current relationships of the Company and the UK Subsidiary with customers, employees, agents, consultants suppliers and other similar representatives persons with which the Company or the UK Subsidiary has significant business relations. By way of amplification and maintain its relations not limitation, except (i) as expressly contemplated by this Agreement and good will with all suppliersPart 4.2 of the Company Disclosure Schedule, customers, landlords, creditors, employees and other Persons having business relationships or (ii) in connection with the Companyliquidation of the Brazilian Subsidiary, neither the Company nor the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(iiib) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of capital stock of the Company shall keep in full force all insurance policies maintained by it as or the Company Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or the Company Subsidiaries (except for the issuance of a maximum of 2,962,594 shares of Company Common Stock issuable pursuant to Company Options and the Warrants outstanding on the date hereof) or (ii) any assets of the Company or the Company Subsidiaries, except in the ordinary course of business and in a manner consistent with past practice;
(ivc) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to nStor concerning the status of the Company's business;
(v) the Company shall not declare, accrueset aside, set aside make or pay any dividend or make other distribution, payable in cash, stock, property or otherwise, with respect to any other distribution in respect of any shares of Capital Stock, and shall not repurchase, redeem or otherwise reacquire any shares of Capital Stock or other securities (except that the Company may repurchase Company Common Stock from former employees pursuant to the terms of existing restricted stock purchase agreements)its capital stock;
(vid) the Company shall not sellreclassify, issue combine, split, subdivide or authorize the issuance redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any Capital Stock other business combination) any corporation, partnership, other business organization or other security, any division thereof or any significant amount of assets; (ii) incur any option indebtedness for borrowed money or right to acquire issue any Capital Stock debt securities or other securityassume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business and consistent with past practice; (iii) any instrument convertible enter into or exchangeable for any Capital Stock or other security (except that the Company shall be permitted to issue Company Common Stock to employees upon the exercise of outstanding Options and Warrants and to new employees consistent with its existing hiring policy;
(vii) the Company shall not amend or waive any of its rights under, or permit the acceleration of vesting under, (i) except to the extent expressly permitted under the terms of this Agreement, any provision of any of its stock plans, (ii) any provision of any agreement evidencing any outstanding Option, or (iii) any provision of any restricted stock purchase agreement;
(viii) the Company shall not (i) amend or permit the adoption of any amendment to the Company's articles of organization or bylaws, (ii) effect or permit the Company to become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, (iii) form any subsidiary or acquire any equity interest or other interest in any other entity, or (iv) merge, consolidate or otherwise combine or agree to merge, consolidate or otherwise combine with any other Person;
(ix) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $50,000 per month;
(x) the Company shall not (i) enter into, or permit any of the assets owned or used by it to become bound by, any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize, or (ii) amend or prematurely terminate, or waive make any material right or remedy undercommitment with respect to, any such single capital expenditure which is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $250,000 for the Company and the Company Subsidiaries taken as a whole; or (v) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 4.2(e);
(xif) hire additional employees or increase the Company shall not (i) acquirecompensation payable or to become payable or the benefits provided to its directors, lease officers or license any right or other asset from any other Person, (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person, or (iii) waive or relinquish any rightemployees, except for assets acquired, leased, licensed or disposed of by the Company increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or the Company Subsidiaries who are not directors or officers of the Company or the Company Subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of the Company Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures;
(h) make any tax election or settle or compromise any United States federal, state, local or non-United States income tax liability;
(i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2003 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice;
(xiij) amend, modify or consent to the termination of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company shall not (i) lend money to any Person (except that or the Company may make routine travel advances to employees in the ordinary course of business and may, consistent with its past practices, allow employees to acquire Company Common Stock in exchange for promissory notes upon exercise of Options), or (ii) incur or guarantee any indebtedness for borrowed money (except that the Company may make routine borrowings in the ordinary course of business under its line of credit with Xxxxx Fargo Credit, Inc.)Subsidiaries thereunder;
(xiiik) commence or settle any Legal Proceeding;
(l) permit any item of Proprietary Assets owned by the Company shall not (i) establishor the Company Subsidiaries to lapse or to be abandoned, adopt dedicated, or amend any employee benefit plandisclaimed, (ii) pay any bonus fail to perform or make any profit-sharing paymentapplicable filings, cash incentive payment recordings or other similar payment toactions or filings, or increase fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every item of Proprietary Assets owned by the amount of Company or the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, or (iii) hire any new employee whose aggregate annual compensation is expected to exceed $30,000Company Subsidiaries;
(xivm) fail to make in a timely manner any filings with the Company shall not change any of its methods of accounting SEC required under the Securities Act or accounting practices in any material respect;the Exchange Act or the rules and regulations promulgated thereunder; or
(xvn) the Company shall not announce an intention, enter into any formal or informal agreement or otherwise make any Tax election; and
(xvi) the Company shall not agree or commit a commitment, to take do any of the actions described in clauses "(v)" through "foregoing.
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