Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent shall not, and shall not permit any of its significant subsidiaries to: (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses; (iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational document; (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (v) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or (vi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Bettis Corp /De/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof (including the on-going expansion project at the Company's Mississippi gas storage operations (the "Gas Storage Expansion Project"), which is being undertaken in the ordinary course of business) and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent the Company to Parent the Company or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) other than in 13 20 connection with the Senior Preferred Stock Redemption, purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares upon the exercise of options or conversion of Senior Preferred Stock Options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses);
(iii) amend its Certificate of Incorporationthe Company Charter, By-laws, laws or other comparable charter or organizational document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practice, (B) other transactions involving not in excess of $500,000 in the aggregate and (C) the creation of Liens in connection with working capital borrowings under revolving credit facilities incurred in accordance with Section 4.1(a)(vi);
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement with respect to any of the foregoing, except for working capital borrowings under revolving credit facilities that are (1) incurred in the ordinary course of business, (2) on terms customary for facilities of this type and (3) prepayable without premium or penalty; provided the Company notifies Parent of the entering into of any such facilities and of any drawdowns made thereunder; or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(vii) make or incur any new capital expenditure not included in the Company's approved capital expenditure budget for 1999 set forth as on Section 4.1(a)(vii) of the Company Disclosure Document or not in conjunction with the Gas Storage Expansion Project as contemplated by Section 4.1(a)(vii) of the Company Disclosure Document with respect to 1999, which, singly or in the aggregate with all other expenditures, would exceed $500,000 or enter into any material agreements or commitments with respect to capital expenditures without the prior written consent of Parent (which consent shall not be unreasonably withheld);
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice;
(x) release any party from or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by regulations promulgated by the SECSEC or the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent, such consent not to be unreasonably withheld;
(xv) enter into any forward sale or hedging arrangements with respect to natural gas transportation or storage or any other products; or
(vixvi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger Closing Date (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall the Company shall, and Sellers shall cause each of its significant subsidiaries to the Company to, carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent shall prior to the Closing Date the Company will not, and shall not Sellers will not, without the prior written consent of Buyer, permit any of its significant subsidiaries or allow the Company to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessescapital stock;
(iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational documentthe Company Charter Documents;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, g▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or dispose of any of its properties or assets, except (A) in the ordinary course of business consistent with past practice or (B) other transactions involving not in excess of $100,000.00 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, and (2) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than employees of the Company in the ordinary course of business consistent with past practice;
(vii) make or incur capital expenditures in the aggregate in excess of $400,000.00;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by for changes conforming to regulations promulgated by the SECFinancial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or
(vixvi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Natural Gas Services Group Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof, which are being undertaken in the ordinary course of business) and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this AgreementAgreement and Section 4.1 of the Disclosure Schedule, Parent prior to the Effective Time the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent the Company or a wholly-wholly owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its or its subsidiaries' capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares upon the exercise of Stock Options options and warrants outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses);
(iii) amend its Certificate of Incorporation, By-laws, the Company Charter or other comparable charter or organizational documentdocuments;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or dispose of any of its properties or assets, except (A) in the ordinary course of business consistent with past practice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings under revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(vii) make or incur any new capital expenditure not included in the Company's approved capital expenditure budget for 2001, previously provided to Parent, which, singly or in the aggregate with all other expenditures, would exceed $1,000,000;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by regulations promulgated by the SECSEC or the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $500,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees, (B) adopt any new, or amend any existing, incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees (other than amendments required by law or to maintain the tax qualified status of such plans under the Code), (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (D) grant any stock options or stock awards; or
(vixvi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During Except as expressly provided or permitted herein, or as consented to in writing by Buyer, during the period from commencing on the date of this Agreement to and ending on the Effective Time of Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the Merger (except as otherwise specifically contemplated by the terms of this Agreement“Pre-Closing Period”), Parent shall Sellers will cause the Company to act and shall cause each of its significant subsidiaries to carry on their respective the Company’s businesses in the usualOrdinary Course of Business, regular maintain and ordinary course in substantially preserve the same manner as heretofore conductedCompany’s business organization, assets and properties, preserve the Company’s business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it and keep available the services of the present officers, employees and consultants of the Company. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreementprovided or permitted herein, Parent during the Pre-Closing Period, the Company shall not, and shall not permit directly or indirectly, do any of its significant subsidiaries tothe following without the prior written consent of Buyer:
(i) (A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock or other equity securities, other than (I) dividends except that the Company may make distributions to the Sellers in sufficient amount to pay federal, state and distributions by any direct or indirect wholly-owned subsidiary local income taxes, at the highest marginal tax rates applicable to such Sellers on the net distributive share of Parent the Company’s income, losses, deductions and credits that have been separately stated and passed through to Parent or a wholly-owned subsidiary the Sellers under Section 1366 of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Code, (B) provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its capital stock or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) any of its other securities; or purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares capital stock or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such sharescapital stock, voting securities or convertible or exchangeable securities (other than, in the case of Parent, (A) than the issuance of Parent Shares shares of capital stock upon the exercise of Stock Options options or warrants outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesAgreement);
(iii) amend its Certificate any of Incorporation, By-laws, the Organizational Documents or other comparable charter or organizational documentdocuments or enter into any new line of business or discontinue any existing line of business;
(iv) adopt a plan of complete acquire by merging or partial liquidation consolidating with, or resolutions providing for or authorizing such a liquidation by purchasing all or a dissolutionsubstantial portion of the assets or any stock of, mergeror by any other manner, consolidationany business or any corporation, restructuringpartnership, recapitalization joint venture, limited liability company, association or reorganizationother business organization or division thereof, or any assets that are material, in the aggregate, to such Company;
(v) change sell, lease, license, pledge, or otherwise dispose of or encumber any material accounting principle used by it, except as required by regulations promulgated by properties or material assets of such Company other than in the SEC; orOrdinary Course of Business;
(vi) authorize knowingly or irrevocably waive any material right of such Company under any Material Contract;
(vii) (A) incur any Indebtedness other than draws under such Company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or pay any guaranty fees or other fees to any guarantor of any Indebtedness of such Company, (B) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of such Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (C) make any loans, advances or capital contributions to, or investment in, any other Person; provided, however, that such Company may, in the Ordinary Course of Business, invest in debt securities maturing not more than ninety (90) days after the date of investment, or (iv) other than in the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect such Company against fluctuations in commodities prices or exchange rates;
(viii) make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of $25,000 in the aggregate;
(ix) make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP;
(x) except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of any current or former director, officer or employee, including the Company Benefit Plan or any collective bargaining agreement, (B) increase in any material respect the compensation or fringe benefits of, or commit pay any bonus to, any director, officer or agree employee, (C) accelerate the payment, right to payment or vesting of any material compensation or benefits, including any outstanding options or restricted equity awards, other than as contemplated by this Agreement, (D) grant any options to purchase capital stock, equity appreciation rights, equity based or equity related awards, performance units or restricted equity, or (E) take any ofaction other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under the Company Benefit Plan;
(xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the foregoing actionslimitation period applicable to any claim or assessment in respect of Taxes;
(xii) enter into or amend any contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder);
(xiii) commence, pay, discharge, settle or satisfy any lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Reviewed Balance Sheet and financial statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which such Company is a party;
(xiv) permit any material increase in the number of employees employed by such Company on the date hereof;
(xv) terminate or fail to renew any Governmental Authorization that is required for continued operations;
(xvi) enter into any collective bargaining agreement or union contract with any labor organization or union;
(xvii) accelerate or defer any obligation or payment by or to such Company, or not pay any accounts payable or other obligation of such Company when due and other than in the Ordinary Course of Business;
(xviii) decrease or defer in any material respect the level of training provided to the employees of such Company or the level of costs expended in connection therewith; and
(xix) fail to maintain insurance at levels at least comparable to current levels or otherwise in a manner inconsistent with past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tower Tech Holdings Inc.)
Ordinary Course. During the period from the date of this Agreement Except as set forth in Exhibit 6.2, and except for any actions required to the Effective Time of the be performed by Dakota or Merger (except as Corp or otherwise specifically contemplated by the terms of permitted pursuant to this Agreement), Parent Dakota shall (and shall cause each of Dakota Group Member to) conduct its significant subsidiaries to carry on their respective businesses business only in the usual, regular ordinary and ordinary usual course in substantially the same manner as heretofore conducted. Without limiting the generality all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, and business associates, and Dakota shall not (and shall cause each Dakota Group Member not to) do any of the foregoing, and except as otherwise expressly contemplated following:
(a) sell or pledge or agree to sell or pledge any capital stock owned by this Agreement, Parent shall not, and shall not permit it in any of its significant subsidiaries to:Subsidiaries;
(ib) amend its Certificate of Incorporation (Aor like charter documents) or By-laws;
(c) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock;
(d) declare, set aside or pay any dividends on, dividend or make any other distributions distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock;
(e) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock;
(f) enter into any material transaction not in the ordinary course of its business consistent with past practice;
(g) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock other than Dakota Shares or securities directly or indirectly convertible into or exchangeable or exercisable for Dakota Shares in connection with the offering referenced in Section 9.7;
(Ih) dividends transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any property or assets or incur, guarantee, assume, or modify any indebtedness or other liability other than in the ordinary and distributions by any direct or indirect wholly-owned subsidiary usual course of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent business consistent with past practice, (B) split, combine other than convertible debentures or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, notes issued by Dakota in connection with the acquisition of assets or equity securities of other entities or businessesoffering referenced in Section 9.7;
(iiii) amend its Certificate authorize capital expenditures other than in the ordinary and usual course of Incorporation, By-laws, or other comparable charter or organizational documentbusiness consistent with past practice;
(ivj) adopt a plan make any material acquisition of, or investment in, assets, shares, capital stock or other securities of complete any other person or partial liquidation entity other than its wholly-owned Subsidiaries or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationin the ordinary and usual course of business consistent with past practice;
(vk) change except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Law, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan;
(l) implement any change in its accounting principle used by itprinciples, except practices, or methods, other than as may be required by regulations promulgated by the SECgenerally accepted accounting principles; orand
(vim) authorize or enter into any of, or commit or agree agreement to take any of, of the foregoing actionsactions referred to in this Section.
Appears in 1 contract
Sources: Merger Agreement (Usmx Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement)VCAM shall, Parent shall and shall cause each of its significant subsidiaries to Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and use its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by ADP and VCAM that this Section 4.2(b) is a material covenant and ADP is relying on VCAM's compliance with the provisions of this covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, and except as otherwise expressly contemplated required by this Agreementlaw, Parent shall not, and shall not permit neither VCAM nor any of its significant subsidiaries toSubsidiaries shall:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (I) except dividends and distributions by any a direct or indirect wholly-wholly owned subsidiary Subsidiary of Parent VCAM to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceits parent), (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent VCAM or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other than, in the case of Parent, securities or equity equivalents (Aincluding without limitation stock appreciation rights) the issuance of Parent Shares (other than (x) issuances upon the exercise of Stock Options stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of this Agreement the VCAM Disclosure Schedule and (y) issuances of up to 70,000 options to acquire shares of VCAM Common Stock at the then-current market price for VCAM Common Stock as of the time of the grant of any such options in accordance with their current termsthe terms of The Vincam Group, Inc. 1996 Long Term Incentive Plan or (B) the issuance of a number of Parent SharesThe Vincam Group, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesInc. 1998 Long Term Incentive Plan;
(iii) except as set forth on Section 4.2(b)(iii) of the VCAM Disclosure Schedule and with respect to annual bonuses made in the ordinary course of business consistent with past practice, adopt or amend its Certificate of Incorporationin any material respect any bonus, By-lawsprofit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other comparable charter employee benefit agreement, trust, plan or organizational documentother arrangement for the benefit or welfare of any director, officer or employee of VCAM or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of VCAM or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of VCAM or any of its Subsidiaries (in each case, except with respect to employees (other than directors or officers) in the ordinary course of business consistent with past practice);
(iv) adopt a plan amend its certificate of complete incorporation, by-laws or partial liquidation equivalent organizational documents or resolutions providing for or authorizing such a liquidation or a dissolution, alter through merger, consolidationliquidation, restructuringreorganiza tion, recapitalization restructuring or reorganizationin any other fashion the corporate structure or ownership of any Subsidiary of VCAM;
(v) except as set forth on Section 4.2(b)(v) of the VCAM Disclosure Schedule, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets, except sales or licenses of assets in the ordinary course of business consistent with past practice;
(vi) except as set forth on Section 4.2(b)(vi) of the VCAM Disclosure Schedule and except for borrowings under credit facilities or other agreements filed as exhibits to the VCAM SEC Documents, incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of VCAM or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to VCAM or any direct or indirect wholly owned Subsidiary of VCAM;
(vii) change any material accounting principle used by it, except as unless required by regulations promulgated by the SEC; orSEC or the Financial Accounting Standards Board;
(viviii) authorize enter into any oftransaction or series of transactions with any Affiliate of VCAM (other than a wholly owned Subsidiary of VCAM) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to VCAM or such Subsidiary as would be obtainable by VCAM or such Subsidiary at the time of such transaction with a Person that is not an Affiliate of VCAM; and
(ix) enter into or amend, modify, supplement or commit waive any material provision of any contract, agreement or agree to take arrangement with any ofclient or potential client if, in the aggregate, the foregoing actionsterms of such contracts, agreements or arrangements as entered into or so amended, modified, supplemented or waived differ in any materially adverse respects from the terms set forth in the forms of client contracts attached to Section 4.2(b)(ix) of the VCAM Disclosure Schedule or would not otherwise be in the ordinary course of VCAM's business.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this AgreementAgreement or as described in the Company Disclosure Document), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent the Company or a wholly-wholly owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares upon the exercise of Stock Options options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their current terms), purchase, redeem or (B) the issuance otherwise acquire or agree to acquire any shares of a number of Parent Shares, not to exceed 5% capital stock or other securities of the Parent Shares currently outstanding, in connection with the acquisition Company or any of assets or equity securities of other entities or businessesits subsidiaries;
(iii) amend any material term of any of its outstanding securities;
(iv) amend its Certificate of Incorporation, By-laws, laws or other comparable charter or organizational document;
(ivv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(vi) form any joint venture with any other person under circumstances wherein the Company and its subsidiaries would have any liability or obligation for a contribution to be evidenced by debt or equity of such venture in excess of $100,000;
(vii) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(ix) make or incur any new capital expenditure not included in the Company's approved capital expenditure budget for 1999, which, singly or in the aggregate with all other expenditures, would exceed $1,000,000;
(x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material change in reserves for Tax items other than any change in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods;
(xi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice;
(xii) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxiv) enter into any new collective bargaining agreement;
(xv) change any material accounting principle used by it, except as required by regulations promulgated by the SECSEC or the Financial Accounting Standards Board;
(xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $250,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xvii) make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement; or
(vixviii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Emersub Lxxiv Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date, Holdings and FDESI covenant that FDESI and Holdings (with respect to the business of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent FDESI) shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall, in all material respects, be 44 unimpaired at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by during the period from the date of this AgreementAgreement to the Closing Date, Parent FDESI shall not, and shall not permit any of its significant subsidiaries to:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries FDESI or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessessecurities;
(iii) amend its Certificate certificate of Incorporationincorporation, Byby-laws, laws or other comparable charter or organizational documentdocuments or reincorporate in any jurisdiction;
(iv) adopt acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a plan substantial portion of complete the assets of, or partial liquidation by any other manner, any business or resolutions providing any corporation, partnership, joint venture, association or other business organization or division thereof, except for such actions undertaken in the ordinary course of business and consistent with past practice and involving no more than $250,000 in the aggregate or authorizing such a liquidation (y) any assets that are material, individually or a dissolutionin the aggregate, merger, consolidation, restructuring, recapitalization or reorganizationto FDESI;
(v) change sell, lease, mortgage or otherwise encumber or subject to any material accounting principle Lien or otherwise dispose of, any of its properties or assets, except sales of properties or assets no longer used by it, except as required by regulations promulgated by FDESI in the SEC; orconduct of its business and sales of inventory in the ordinary course of business consistent with past practice;
(vi) (y) incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of FDESI, guarantee any debt securities of another person, enter into any "keep well" other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowing on an inter-company basis not in excess of $1,000,000 in the aggregate incurred in the ordinary course of business consistent with past practice, the endorsement of checks in the normal course of business and the extension of credit in the normal course of business or (z) make any loans, advances or capital contributions to, or investments in, any other person, other than to FDESI;
(vii) make or agree to make any new capital expenditures or commitments, purchases of property or acquisitions of other businesses, capital assets or properties which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $250,000 or enter into any new real property lease;
(viii) make any Tax election (other than in the ordinary course of preparing and filing its Tax returns) or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, or liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of FDESI included in the FDESI Disclosure Letter or incurred after the date of such financial statements in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality or similar agreement to which FDESI is a party;
(x) adopt any shareholder rights or similar plan or take any other action with the intention of, or which may have the effect of, discriminating against the Company as a shareholder of FDESI (or any successor);
(xi) adopt or amend in any material respect any Plan;
(xii) enter into any contract, agreement, plan or arrangement covering any director, officer or employee providing for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the consummation of the transactions contemplated hereby or by the Option Agreement or any acquisition by the Company of securities of FDESI (whether by merger, tender offer, private or market purchases or otherwise) or (B) the termination of employment after the occurrence of any such contingency if such payment, acceleration of entitlement would not have been provided but for such contingency; or amend any existing contract, agreement, plan or arrangement to so provide.
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent TMW shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent TMW shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent TMW to Parent TMW or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceTMW and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent TMW or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options, purchase of shares of TMW Common Stock to fund current requirements under employee benefit plans and except in connection with the Exchangeable Shares of Moor▇▇ ▇▇▇ail Group, Inc. ("MRG") and the Subscription Agreement between MRG and Golden Moores Finance Company;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of ParentTMW, (A) the issuance of Parent Shares TMW Common Stock upon the exercise of Stock Options stock options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Sharesshares of TMW Common Stock, not to exceed 510% of the Parent Shares number of shares of TMW Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses, (C) pursuant to the existing bank credit agreements of TMW and its subsidiaries, or (D) in connection with the Exchangeable Shares of MRG or the Subscription Agreement;
(iii) amend its Certificate TMW's Restated Articles of Incorporation, By-laws, or other comparable charter or organizational document;
(iv) acquire or agree to acquire any business, corporation, partnership, association, joint venture, limited liability company or other entity or division thereof involving the payment of consideration, in aggregate for all such acquisitions, in excess of $100 million without the written consent of the Company, which consent shall not be unreasonably withheld;
(v) adopt a plan of complete or partial liquidation of TMW or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vvi) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vivii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger Closing Date (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall the Company shall, and Sellers shall cause each of its significant subsidiaries to the Company to, carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent shall prior to the Closing Date the Company will not, and shall not Sellers will not, without the prior written consent of Buyer, permit any of its significant subsidiaries or allow the Company to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessescapital stock;
(iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational documentthe Company Charter Documents;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, grant a Lien on or otherwise encumber or dispose of a▇▇ ▇▇ ▇▇▇ ▇▇▇perties or assets, except (A) in the ordinary course of business consistent with past practice or (B) other transactions involving not in excess of $100,000.00 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, and (2) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than employees of the Company in the ordinary course of business consistent with past practice;
(vii) make or incur capital expenditures in the aggregate in excess of $400,000.00;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by for changes conforming to regulations promulgated by the SECFinancial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or
(vixvi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Natural Gas Services Group Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement)Zemex shall, Parent shall and shall cause each of other Zemex Group Member to, conduct its significant subsidiaries to carry on their respective businesses business only in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Without limiting the generality of the foregoingand use all commercially reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees and business associates, and, except as otherwise expressly contemplated provided in this Agreement or as required by this Agreementapplicable Law, Parent Zemex shall not, not (and shall cause each other Zemex Group Member not permit to) do any of the following without the prior written consent of Parentco:
(a) sell or pledge or agree to sell or pledge any capital stock owned by it in any other Zemex Group Member;
(b) amend its Constating Documents;
(c) subdivide, split, combine, consolidate or reclassify any of its significant subsidiaries to:outstanding shares of capital stock;
(id) permit any Zemex Group Member (Aother than Zemex) to declare, set aside or pay any dividends on, dividend or make any other distributions distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock, other than intercompany dividends among Zemex Group Members that do not give rise to withholding or other Tax obligations;
(e) repurchase, redeem or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock except pursuant to the terms of any securities outstanding as of the date hereof and which are set forth in Section 3.12 or Section 3.13 of the Zemex Disclosure Letter which require such repurchase, redemption, acquisition or exchange;
(f) incur, guarantee, assume or modify any additional indebtedness for borrowed money other than in the ordinary and usual course of business consistent with past practice;
(g) enter into any material transaction not in the ordinary and usual course of business consistent with past practice;
(h) issue, sell, pledge, dispose of or encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any of its capital stockstock or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock other than pursuant to the exercise of Zemex Options outstanding under the Zemex Option Plan;
(Ii) dividends transfer, lease, license, sell, mortgage, pledge, encumber or dispose of any property or assets other than in the ordinary and distributions usual course of business;
(j) make, whether by arrangement, consolidation or purchase, any direct acquisition of, or indirect investment in, assets, shares, capital stock or other securities of any other Person other than its wholly-owned subsidiary Subsidiaries or in the ordinary and usual course of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent business, consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(iik) issueexcept as may be required by applicable Law, deliverestablish, selladopt, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible enter into, make, amend in any material respect, or make any rightselections under any collective bargaining agreement or Employee Plan or Foreign Plan, warrants or options to acquireor, any such shares, voting securities or convertible securities other than, except in the case ordinary course of Parentbusiness, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, make any payment in connection with the acquisition termination of assets any consulting or equity securities of similar agreement, or enter into any new or amend any existing employment, consulting or other entities agreement providing compensation or businessesbenefits to any employee;
(l) except as may be required to satisfy contractual obligations or Employee Plan or Foreign Plan obligations existing as of the date hereof and the requirements of applicable Law and except as required pursuant to the provisions of the Plan of Arrangement: (i) amend any Employee Plan or Foreign Plan where such amendment would increase any Zemex Group Member’s annual or aggregate liability or funding obligations in connection with such Employee Plan or Foreign Plan, (ii) terminate or merge any Employee Plan(s) or Foreign Plan(s), (iii) amend its Certificate transfer assets from any Employee Plan or Foreign Plan, (iv) extend membership, benefits or coverage under any Employee Plan or Foreign Plan to any employee who is not currently eligible to receive such membership, benefits or coverage, other than in accordance with the terms of Incorporationsuch Employee Plan or Foreign Plan, By-laws(v) incorporate any “change in control” provision into any Employee Plan or Foreign Plan, or modify any “change in control” provision presently contained in any Employee Plan or Foreign Plan, or (vi) transfer any employee from any Zemex Group Member to any other comparable charter or organizational documentZemex Group Member in circumstances where such transfer would materially increase the Zemex Group Members’ collective expenses in connection with the employment of such employee;
(ivm) adopt a plan of complete implement any change in its accounting principles, practices, or partial liquidation methods, other than as may be required by Law or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationGAAP;
(vn) change alter (through arrangement, liquidation, reorganization, restructuring or in any material accounting principle used by itother fashion) the corporate structure or ownership of Zemex or any other Zemex Group Member;
(o) withdraw, permit or consent to the removal of any assets of any of the Employee Plan or Foreign Plans other than for the purpose of paying benefits in the ordinary course and the payment of expenses in accordance with past practice and under the terms of such plan;
(p) amend the terms of any of its outstanding indebtedness, except as required requested by regulations promulgated Parentco (any such amendments to be effective only if the Closing occurs);
(q) settle, compromise or otherwise terminate or agree to any termination of any pending or threatened lawsuit, claim, proceeding or investigation affecting any Zemex Group Member or any of their assets, rights or properties, other than such suits, claims, proceedings or investigations which are either (x) fully covered by insurance maintained by the SECZemex Group (except for customary deductibles) or (y) fully reserved against in the Fiscal 2002 Financial Statements;
(r) grant any new or amend any existing rights of indemnification or exculpation of the type described in Section 4.01(a) or waive any conditions to the exercise of such rights; or
(vis) authorize or enter into any ofagreement or understanding of any type whatsoever, whether written or commit or agree oral, to take any of, of the foregoing actionsactions referred to in this Section 5.02.
Appears in 1 contract
Sources: Arrangement Agreement (Zemex Corp)
Ordinary Course. During Except: (i) as set forth in Section 4.02 of the period from Amax Disclosure Letter; (ii) to the date extent such an Amax Group Member is subject to contractual restrictions or restrictions set forth in the organizational documents of such Amax Group Member which would limit or otherwise restrict its ability to do so; and (iii) for any actions required to be performed by Amax or otherwise contemplated by this Agreement to or the Effective Time of the Merger Stockholder Agreement or approved in advance by Kinross, Amax shall (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each of Amax Group Member to) conduct its significant subsidiaries to carry on their respective businesses business only in the usual, regular ordinary and ordinary usual course in substantially the same manner as heretofore conducted. Without limiting the generality all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, and business associates, and Amax shall not (and shall cause each Amax Group Member not to) do any of the foregoing, and except as otherwise expressly contemplated following:
(a) sell or pledge or agree to sell or pledge any capital stock owned by this Agreement, Parent shall not, and shall not permit it in any of its significant subsidiaries to:subsidiaries;
(ib) amend its Articles or Certificate of Incorporation (Aor like charter documents) or By-laws;
(c) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock;
(d) other than in accordance with the terms of the Amax Preferred Shares, declare, set aside or pay any dividends on, dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock other than consistent with past practice, and other than dividends or distributions declared, set aside, paid or payable by any Amax Group Member (other than Amax) or a subsidiary of Amax;
(e) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock other than upon conversion of the Amax Preferred Shares;
(f) incur, guarantee, assume or modify any additional indebtedness for borrowed money in respect an aggregate amount in excess of $30,000,000 other than in the ordinary course of business or pursuant to credit facilities and arrangements with the Significant Shareholder provided, however that any new credit -------- ------- facility not provided by the Significant Shareholder or any of its Affiliates shall be provided by a financial institution and advances thereunder shall not be applied to the reduction of debt owing to the Significant Shareholder pursuant to the existing demand loan facility;
(g) enter into any material transaction not in the ordinary course of its business consistent with past practice;
(h) issue, sell, pledge, dispose of or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock other than:
(i) Amax Shares issued pursuant to the exercise or conversion of outstanding securities of Amax convertible into Amax Shares or pursuant to the exercise or conversion of options outstanding pursuant to Amax's stock option plans; or
(ii) Amax Shares issued as or with respect to contributions to or fund transfers within the Amax's 401(k) Plan in effect on the date hereof;
(i) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets other than (I) dividends in the ordinary and distributions by any direct or indirect wholly-owned subsidiary usual course of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent business consistent with past practice;
(j) make, (B) splitwhether by merger, combine consolidation or reclassify purchase, any of its material acquisition of, or investment in, assets, shares, capital stock or issue or authorize the issuance other securities of any other securities person or entity other than its wholly-owned subsidiaries or in the ordinary and usual course of business consistent with past practice;
(k) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Law, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan or enter into any new or amend in any material respect any existing employment, consulting or other agreement providing compensation or benefits to any executive employee or director except for employment agreements with new employees (other than Amax corporate staff), entered into in the ordinary course of business which agreements do not provide for the payment of "golden parachutes" or other amounts in respect ofof severance which are triggered by the Merger;
(l) except as may be required to satisfy contractual obligations or Amax Group Employee Plan obligations existing as of the date hereof and the requirements of applicable Law: (i) amend any Amax Group Employee Plan where such amendment would increase any Amax Group Member's annual or aggregate liability or funding obligations in connection with such Amax Group Employee Plan by more than five percent, (ii) terminate or merge any Employee Plan(s), (iii) transfer assets from any Amax Group Employee Plan, (iv) extend membership, benefits or coverage under any Amax Group Employee Plan to any employee who is not currently eligible to receive such membership, benefits or coverage, (v) incorporate any "change in lieu control" provision into any Amax Group Employee Plan, or modify any "change in control" provision presently contained in any Amax Group Employee Plan [except for certain clarification amendments to the Amax 1992 Stock Option Plan, Performance Share Plan and the Key Employees Separation Plan], (vi) transfer any employee from any Amax Group Member to any other Amax Group Member in circumstances where such transfer would increase the Amax Group Members' collective expenses in connection with the employment of such employee;
(m) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles;
(n) alter (through merger, liquidation, reorganization, restructuring or in substitution for shares any other fashion) the corporate structure or ownership of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent Amax or any Amax Group Member;
(o) withdraw, permit or consent to the removal of its subsidiaries or any assets of any of the Employee Plans maintained by any Amax Group Member other securities thereof or than for the purpose of paying benefits in the ordinary course and payment of expenses in accordance with past practice and under the terms of such plan;
(p) take any rights, warrants or options to acquire any such shares or other securities;action that would either:
(i) prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Tax Code; or
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options cause the Eligible Amax Shareholders to acquire, any such shares, voting securities or convertible securities other than, recognize a taxable gain in the case of Parent, (AMerger under Section 367(a) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesTax Code;
(iiiq) amend its Certificate take any action that would prevent the Merger from being characterized as a "pooling of Incorporation, By-laws, or other comparable charter or organizational documentinterests" for the purposes of Canadian GAAP;
(iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(v) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vir) authorize or enter into any ofagreement or understanding of any type whatsoever, whether written or commit or agree oral to take any of, of the foregoing actionsactions referred to in this Section.
Appears in 1 contract
Sources: Merger Agreement (Amax Gold Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by Merger, the terms of this Agreement)Company shall, Parent shall and shall cause each of its significant subsidiaries to to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall be unimpaired at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by during the period from the date of this AgreementAgreement to the Effective Time of the Merger, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stockshares, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent or a wholly-owned subsidiary of Parent or its parent (II) except to regular quarterly cash dividends on the Shares declared or and paid by Parent at times consistent with past practicepractice in an amount not in excess of $0.05 per Share per quarter), (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stockshares, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parent, than (Ax) the issuance of Parent Shares upon the exercise of Stock Employee Options outstanding on the date of this Agreement in accordance with their current terms, or present terms and (By) the issuance of a number of Parent Shares, not to exceed 5% Shares upon conversion of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesConvertible Debentures);
(iii) amend its Certificate Articles (Certificate) of Incorporation, By-laws, laws or other comparable charter or organizational documentdocuments;
(iv) adopt acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a plan substantial portion of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(v) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vi) authorize any assets of, or commit by any other manner, any business or agree any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to take any ofthe Company and its subsidiaries taken as a whole, except purchases of inventory in the foregoing actions.ordinary course of business consistent with past practice or in the 29 24 fulfillment of contracts in existence on the date hereof and copies of which have been made available to Parent;
Appears in 1 contract
Sources: Merger Agreement (Revco D S Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by Merger, the terms of this Agreement)Company shall, Parent shall and shall cause each of its significant subsidiaries to to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by during the period from the date of this AgreementAgreement to the Effective Time of the Merger, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceits parent, (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parent, than (A1) the issuance of Parent Shares Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, or present terms and (B2) the issuance of a number Common Stock (and associated Rights) upon the exercise of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, Convertible Sub Notes in connection accordance with the acquisition of assets or equity securities of other entities or businessestheir terms);
(iii) amend its Certificate certificate of Incorporationincorporation, Byby-laws, laws or other comparable charter or organizational documentdocuments;
(iv) adopt acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a plan substantial portion of complete the assets of, or partial liquidation by any other manner, any business or resolutions providing for any corporation, partnership, joint venture, association or authorizing such other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a liquidation or a dissolutionwhole, merger, consolidation, restructuring, recapitalization or reorganizationexcept purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(vA) change grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material accounting principle used by itrespect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by regulations promulgated applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the SECCompany and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(vixiii) authorize any of, or commit or agree to take any of, the foregoing actionsactions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).
Appears in 1 contract
Sources: Merger Agreement (Lazard Freres Real Estate Investors LLC)
Ordinary Course. During Except as expressly provided or permitted herein, or as consented to in writing by Buyer, during the period from commencing on the date of this Agreement to and ending on the Effective Time of Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the Merger (except as otherwise specifically contemplated by the terms of this Agreement“Pre-Closing Period”), Parent shall Sellers will cause the Company to act and shall cause each of its significant subsidiaries to carry on their respective the Company’s businesses in the usualOrdinary Course of Business, regular maintain and ordinary course in substantially preserve the same manner as heretofore conductedCompany’s business organization, assets and properties, preserve the Company’s business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it and keep available the services of the present officers, employees and consultants of the Company. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreementprovided or permitted herein, Parent during the Pre-Closing Period, the Company shall not, and shall not permit directly or indirectly, do any of its significant subsidiaries tothe following without the prior written consent of Buyer:
(i) (A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock or other equity securities, other than (I) dividends except that the Company may make distributions to the Sellers in sufficient amount to pay federal, state and distributions by any direct or indirect wholly-owned subsidiary local income taxes, at the highest marginal tax rates applicable to such Sellers on the net distributive share of Parent the Company’s income, losses, deductions and credits that have been separately stated and passed through to Parent or a wholly-owned subsidiary the Sellers under Section 1366 of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Code, (B) provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its capital stock or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) any of its other securities; or purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares capital stock or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such sharescapital stock, voting securities or convertible or exchangeable securities (other than, in the case of Parent, (A) than the issuance of Parent Shares shares of capital stock upon the exercise of Stock Options options or warrants outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesAgreement);
(iii) amend its Certificate any of Incorporation, By-laws, the Organizational Documents or other comparable charter or organizational documentdocuments or enter into any new line of business or discontinue any existing line of business;
(iv) adopt a plan of complete acquire by merging or partial liquidation consolidating with, or resolutions providing for or authorizing such a liquidation by purchasing all or a dissolutionsubstantial portion of the assets or any stock of, mergeror by any other manner, consolidationany business or any corporation, restructuringpartnership, recapitalization joint venture, limited liability company, association or reorganizationother business organization or division thereof, or any assets that are material, in the aggregate, to the Company;
(v) change sell, lease, license, pledge, or otherwise dispose of or encumber any material accounting principle used by it, except as required by regulations promulgated by properties or material assets of the SEC; orCompany other than in the Ordinary Course of Business;
(vi) authorize knowingly or irrevocably waive any material right of the Company under any Material Contract;
(vii) (A) incur any Indebtedness other than draws under such Company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or pay any guaranty fees or other fees to any guarantor of any Indebtedness of the Company, (B) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (C) make any loans, advances or capital contributions to, or investment in, any other Person; provided, however, that the Company may, in the Ordinary Course of Business, invest in debt securities maturing not more than ninety (90) days after the date of investment, or (iv) other than in the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company against fluctuations in commodities prices or exchange rates;
(viii) make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of fifty thousand dollars ($50,000) in the aggregate;
(ix) make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP;
(x) except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of any current or former director, officer or employee, including a Company Benefit Plan or any collective bargaining agreement, (B) increase in any material respect the compensation or fringe benefits of, or commit pay any bonus to, any director, officer or agree employee, (C) accelerate the payment, right to payment or vesting of any material compensation or benefits, including any outstanding options or restricted equity awards, other than as contemplated by this Agreement, (D) grant any options to purchase capital stock, equity appreciation rights, equity based or equity related awards, performance units or restricted equity, or (E) take any ofaction other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under a Company Benefit Plan;
(xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the foregoing actionslimitation period applicable to any claim or assessment in respect of Taxes;
(xii) enter into or amend any contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder);
(xiii) commence, pay, discharge, settle or satisfy any lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Unaudited Balance Sheet and financial statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which the Company is a party;
(xiv) permit any material increase in the number of employees employed by the Company on the date hereof;
(xv) terminate or fail to renew any Governmental Authorization that is required for continued operations;
(xvi) enter into any collective bargaining agreement or union contract with any labor organization or union;
(xvii) accelerate or defer any obligation or payment by or to the Company, or not pay any accounts payable or other obligation of such Company when due and other than in the Ordinary Course of Business;
(xviii) decrease or defer in any material respect the level of training provided to the employees of such Company or the level of costs expended in connection therewith; and
(xix) fail to maintain insurance at levels at least comparable to current levels or otherwise in a manner inconsistent with past practice.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement)GEXA shall, Parent shall and shall cause each of its significant subsidiaries to Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and use its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by Holdings and GEXA that this Section 4.2(a) is a material covenant and FPL Group and Holdings is relying on GEXA’s compliance with the provisions of this covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, and except as otherwise expressly contemplated required by this Agreementlaw, Parent shall not, and shall not permit neither GEXA nor any of its significant subsidiaries toSubsidiaries shall, without the prior written consent of Holdings:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than whether payable in cash, stock, property or otherwise (I) except dividends and distributions by any a direct or indirect wholly-wholly owned subsidiary Subsidiary of Parent GEXA to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceGEXA), (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent GEXA or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other than, in the case of Parent, securities or equity equivalents (Aincluding without limitation stock appreciation rights) the issuance of Parent Shares (other than (x) issuances upon the exercise of Stock Options stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of this Agreement the GEXA Disclosure Schedule, and (y) issuances of Continental Shares in the ordinary course of business, consistent with past practices and in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesContinental Agreement);
(iii) except as set forth on Section 4.2(a)(iii) of the GEXA Disclosure Schedule, adopt or amend its Certificate of Incorporationin any material respect any bonus, By-lawsprofit sharing, compensation, severance, termination, stock option, stock appreciation right, warrant, restricted stock, pension, retirement, employment or other comparable charter employee benefit agreement, trust, plan or organizational documentother arrangement for the benefit or welfare of any director, officer or employee of GEXA or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of GEXA or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of GEXA or any of its Subsidiaries;
(iv) adopt a plan amend its articles of complete incorporation, by-laws or partial liquidation equivalent organizational documents or resolutions providing for or authorizing such a liquidation or a dissolution, alter through merger, consolidationliquidation, restructuringreorganization, recapitalization restructuring or reorganizationin any other fashion the corporate structure or ownership of GEXA or any of its Subsidiaries;
(v) except as set forth on Section 4.2(a)(v) of the GEXA Disclosure Schedule, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets other than (i) disposals that do not exceed $50,000 in the aggregate and that are made in the ordinary course of its business or (ii) the sale of electricity to its customers in the ordinary course of business;
(vi) incur any Debt (other than in the ordinary course of business consistent with past practices associated with the purchase and sale of electricity and transmission and distribution under existing credit facilities), issue or sell any debt securities or warrants or other rights to acquire any debt securities of GEXA or any of its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to GEXA or any direct or indirect wholly owned Subsidiary of GEXA;
(vii) change any material accounting principle used by it, unless required by the SEC or the Financial Accounting Standards Board or change any credit practices or collection policies;
(viii) enter into any transaction or series of transactions with any Affiliate of GEXA (other than a wholly owned Subsidiary of GEXA) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to GEXA or such Subsidiary as would be obtainable by GEXA or such Subsidiary at the time of such transaction with a Person that is not an Affiliate of GEXA;
(ix) enter into or amend, modify, supplement, terminate, assign or waive any material provision of any Customer Contract with any customer or potential customer, provided that GEXA and its Subsidiaries may (a) terminate Customer Contracts for default or nonpayment in the ordinary course of business consistent with past practices, and (b) enter into, modify, amend or supplement Customer Contracts in the ordinary course of business consistent with past practices if the terms of such contracts, agreements or arrangements as entered into, amended, modified, or supplemented do not differ in any material adverse respect from the terms set forth in the forms of client contracts attached to Section 4.2(a)(ix) of the GEXA Disclosure Schedule;
(x) make any capital expenditures in excess of $50,000 individually or $250,000 in the aggregate, or, in either case, enter into any binding commitment or contract to make such expenditures;
(xi) make any tax election or settle or compromise any tax liability or refund, except as required by regulations promulgated by the SEC; orwould not reasonably be expected to have a Material Adverse Effect as to GEXA;
(vixii) authorize except as contemplated by Section 6.2(g) of this Agreement, pay, discharge or satisfy any ofclaims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $100,000, net of any insurance benefit to GEXA, in the aggregate, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or liabilities reflected in the GEXA SEC Documents incurred in the ordinary course of business and consistent with past practices;
(xiii) settle or compromise any pending or threatened suit, action or claim relating to this Agreement and the transactions contemplated hereby;
(xiv) commit or agree in writing or otherwise to do any act restricted by this Section 4.2;
(xv) fail to maintain insurance coverages as contemplated by Section 3.1(bb) and file and prosecute any claims thereunder relating the business of GEXA and its Subsidiaries;
(xvi) fail to invest available cash balances, to the extent not otherwise required by the terms of GEXA’s existing credit facilities, in investments that would qualify as Permitted Investments.
(xvii) (A) grant any waiver of any material term under, (B) give any material consent with respect to, (C) assign, terminate or amend, in any material respect, any Material Contract (including without limitation the top 100 Customer Contracts) or GEXA Permit, or allow a GEXA Permit to lapse or terminate or fail to renew any GEXA Permit;
(xviii) subject to (xvii) and except for Customer Contracts, enter into, terminate, assign or amend any Contract other than in the ordinary course of business, provided that, if the ordinary course of business exception applies, such actions shall only be permitted if the Contract involves total consideration of less than $50,000 in the aggregate; and
(xix) engage in any practices, take any ofaction, or enter into any transaction that would result in any misrepresentation or breach of warranty under Section 3.1 of this Agreement; and
(xx) fail to balance its purchases and sales of electricity in accordance with the foregoing actionsbalancing policy of the board of directors of GEXA as set forth in the GEXA board resolution dated August 26, 2004.
Appears in 1 contract
Sources: Merger Agreement (Gexa Corp)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof, which are being undertaken in the ordinary course of business, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent prior to the Effective Time the Company shall not, without the prior written consent of Parent and shall not permit any of its significant subsidiaries toSub:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities capital stock (other than, in the case of Parent, (A) than the issuance of Parent Company Shares upon the exercise of Stock Options options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses);
(iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational documentthe Company Charter Documents;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or dispose of any of its properties or assets, except (A) in the ordinary course of business consistent with past practice and (B) other transactions involving not in excess of $100,000 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, (2) borrowings to fund the payments required by Section 5.9 and (3) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than employees of the Company in the ordinary course of business consistent with past practice;
(vii) make or incur any capital expenditure (including expenditures for oil and gas exploration and development), except in the ordinary course of business and, in the case of any single expenditure in excess of $200,000 and any expenditures in the aggregate in excess of $500,000, as previously disclosed in writing to Parent;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) take any extraordinary action that causes the Company's net operating loss carryforwards to be reduced;
(x) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet;
(xi) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party;
(xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxiii) enter into any new collective bargaining agreement;
(xiv) change any material accounting principle used by it, except as required by regulations promulgated by the SECSEC or the Financial Accounting Standards Board;
(xv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xvi) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees, (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code) or (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (D) grant any stock options or stock awards; or
(vixvii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the -------------------- ---------------- period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by Merger, the terms of this Agreement)Company shall, Parent shall and shall cause each of its significant subsidiaries to to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by during the period from the date of this AgreementAgreement to the Effective Time of the Merger, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceits parent, (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parent, than (A1) the issuance of Parent Shares Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms, or present terms and (B2) the issuance of a number Common Stock (and associated Rights) upon the exercise of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, Convertible Sub Notes in connection accordance with the acquisition of assets or equity securities of other entities or businessestheir terms);
(iii) amend its Certificate certificate of Incorporationincorporation, Byby-laws, laws or other comparable charter or organizational documentdocuments;
(iv) adopt acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a plan substantial portion of complete the assets of, or partial liquidation by any other manner, any business or resolutions providing for any corporation, partnership, joint venture, association or authorizing such other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a liquidation or a dissolutionwhole, merger, consolidation, restructuring, recapitalization or reorganizationexcept purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(vA) change grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material accounting principle used by itrespect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by regulations promulgated by the SEC; orapplicable law or regulation;
(vi) authorize make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or commit or agree to take modify in any ofmanner, any confidentiality, standstill or similar agreement to which the foregoing actions.Company or any of its subsidiaries is a party; (xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement)The Company shall, Parent shall and shall cause each of its significant subsidiaries to Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and use its best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated required by this Agreementlaw, Parent shall not, and shall not permit neither the Company nor any of its significant subsidiaries toSubsidiaries shall:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (I) except dividends and distributions by any a direct or indirect wholly-owned subsidiary Subsidiary of Parent the Company to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceits parent), (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option Agreement dated as of April 13, 1993 by and among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other than, in the case of Parent, securities or equity equivalents (Aincluding without limitation stock appreciation rights) the issuance of Parent Shares other than issuances upon the exercise of Stock Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date of this Agreement hereof and listed in accordance with their current terms, or (BSection 3.1(c) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesCompany Disclosure Schedule;
(iii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and except as contemplated by this Agreement, adopt or amend its Certificate of Incorporationin any material respect any bonus, By-lawsprofit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other comparable charter employee benefit agreement, trust, plan or organizational documentother arrangement for the benefit or welfare of any director, officer or employee of the Company or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its Subsidiaries (in each case, except with respect to employees in the ordinary course of business consistent with past practice);
(iv) adopt a plan amend its certificate of complete incorporation, by-laws or partial liquidation equivalent organizational documents or resolutions providing for or authorizing such a liquidation or a dissolution, alter through merger, consolidationliquidation, restructuringreorganization, recapitalization restructuring or reorganizationin any other fashion the corporate structure or ownership of any Subsidiary of the Company;
(v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(vii) except for borrowings permitted under credit facilities filed as exhibits to the Company SEC Documents, incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to the Company or any direct or indirect wholly-owned Subsidiary of the Company;
(viii) change any material accounting principle used by it, except as unless required by regulations promulgated the SEC or the Financial Accounting Standards Board; and
(ix) except for the Option Exercise, enter into any transaction or series of transactions with any Affiliate of the Company (other than a wholly-owned Subsidiary of the Company) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Company or such Subsidiary as would be obtainable by the SEC; or
(vi) authorize any of, Company or commit or agree to take any of, such Subsidiary at the foregoing actionstime of such transaction with a Person that is not an Affiliate of the Company.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated required by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, Governmental Entities, suppliers, insurers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by set forth in this Agreement, Parent during such period, the Company shall not, and shall not permit any of its significant subsidiaries to:
: (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent the Company or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible intointo any such shares; or issue, deliver, sell or grant any rights, warrants or options to acquire, acquire any such shares, voting securities or convertible securities other thansecurities; or issue, in deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into A-18 24 any agreement to do any of the case of Parentforegoing, (A) except for the issuance of Parent Shares upon the exercise of Stock Options Option Plan options or the Class B Warrants, or the conversion of the Convertible Debt, all as outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses;
; (iii) amend its Certificate of Incorporation, By-laws, laws or other comparable charter or organizational document;
; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice; (v) sell, lease, mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (vii) make or incur any new capital expenditure or expenditures not set forth in the Company's capital budget for fiscal 1995, or in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to Parent), except for capital expenditures not in excess of $50,000 as to any single item and $100,000 in the aggregate; (viii) make any election relating to Taxes or settle or compromise any Tax liability; (ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice; (x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (xi) terminate or amend in any material respect any contract or agreement material to the Company; (xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
; (vxiii) except as expressly permitted by this Agreement, enter into any new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement disclosed in Section 3.1(u) of the Disclosure Schedule; (xiv) change any material accounting principle used by it, except insofar as any such change is required by generally accepted accounting principles or by the rules and regulations promulgated by of the SEC; or
(vixv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in A-19 25 settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent; (xvi) authorize any of, or commit or agree to take any of, the foregoing actions; or (xvii) excluding inventory purchased for resale in the ordinary course of business, the company will not enter into any contracts or other material business obligations or commitments in excess of $100,000, or for a term longer than one year.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Tesoro Petroleum Corp /New/)
Ordinary Course. During Except as (i) otherwise specifically provided in this Agreement, (ii) as set forth in Section 5.1 of the period Company Disclosure Letter or (iii) otherwise consented to in writing by ▇▇▇▇▇▇ and Merger Sub, from the date of this Agreement to the Effective Time Time, the Company will conduct its operations only in the ordinary and usual course of business and will preserve intact its present business organization, take reasonable efforts to keep available the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each services of its present officers, employees and consultants and to preserve its present relationships with licensors, licensees, suppliers, and others with whom the Company has significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedbusiness relationships. Without limiting the generality of the foregoing, and except (x) as otherwise expressly specifically provided in this Agreement or (y) as set forth in Section 5.1 of the Company Disclosure Letter, the Company will not directly or indirectly, from the date of this Agreement to the Effective Time, without the prior written consent of ▇▇▇▇▇▇ and Merger Sub:
(a) propose or adopt any amendment to or otherwise change the Certificate of Incorporation or the Bylaws;
(b) authorize for issuance, sale, pledge, disposition or encumbrance, or issue, sell, pledge, dispose of or encumber (except (x) pursuant to the exercise of Company Stock Options, outstanding on the date hereof, under the Company Stock Option Plans and (y) the issuance of shares pursuant to the ESPP in accordance with past practice or as contemplated by this Agreement, Parent shall not, and shall not permit Section 2.2) any of its significant subsidiaries shares or any of its other securities or any interest relating to or whose value is dependent on the value of any equity interest in the Company or issue any securities convertible into or exchangeable for, options, warrants to purchase, scrip, rights to subscribe for, calls or commitments of any character whatsoever relating to:, or enter into any contract, understanding or arrangement with respect to the issuance of, any of its shares or any of its other securities, or enter into any arrangement or contract with respect to the purchase or voting of shares of its shares, or adjust, split, reacquire, redeem, combine or reclassify any of its securities, or make any other changes in its capital structure;
(i) except in the ordinary course of business, incur (Acontingently or otherwise) any material liability or other material obligation including, without limitation, any indebtedness for borrowed money, enter into any guarantee of any such obligation of another person or mortgage, pledge or subject to any lien, charge or other encumbrance of their assets, properties or business, or (ii) make any loans, advances or capital contributions to, or investments in, any other person other than advances to employees, for reasonable expenses, related to Company business, in the ordinary course of business;
(d) enter into any transaction, commitment, contract, agreement, license or lease, amend or affirmatively renew any such contracts, commitments, licenses or leases other than those that are (i) not material or (ii) in the ordinary course of business and do not involve affiliates of the Company;
(e) sell or otherwise dispose of or lease any material part of its properties or assets, including but not limited to the sale or license of any real estate or Intellectual Property, or purchase or otherwise acquire or lease material properties or assets (including real estate), except purchases, sales and other dispositions in the ordinary course of business (excluding sales or other dispositions of assets held for sale in excess of $100,000 per item), or acquire or agree to acquire by merging or consolidating with, or by purchasing all, or substantially all, of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof;
(f) declare, set aside or pay any dividends on, or make any other distributions in respect of, its outstanding shares;
(i) (A) make any change, other than in the ordinary course of business, in the compensation payable or to become payable to any of its capital stockemployees, other than (I) dividends and distributions by any direct agents or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, consultants or (B) make any change in the issuance compensation payable or to become payable to any of a number its officers or directors, (ii) enter into or amend any employment, consulting, severance, termination or similar agreement; (iii) adopt any new Plan or amend any existing Plan; (iv) make any loans to any of Parent Sharesits officers, not directors, employees, agents or consultants or any changes in its existing borrowing or lending arrangements for or on behalf of any of such persons, whether contingent on the Closing or otherwise; or (v) except to exceed 5% of the Parent Shares currently outstandingextent permitted by Section 2.2 hereof, in connection with take any action to cause to be exercisable any otherwise unexercisable Company Stock Option under the acquisition of assets or equity securities of other entities or businessesCompany Stock Option Plans;
(iiih) amend make any material changes in the type or amount of its Certificate of Incorporation, By-laws, or other comparable charter or organizational documentinsurance coverages;
(ivi) adopt a plan make any material tax election (unless required by law) or settle or compromise any material income tax liability of complete the Company, except if such action is taken in the ordinary course of business and ▇▇▇▇▇▇ shall have been provided reasonable prior notice thereof. The Company shall consult with ▇▇▇▇▇▇ before filing or partial liquidation causing to be filed any material Tax Return of the Company or resolutions providing before executing or causing to be executed any agreement or waiver extending the period for assessment or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationcollection of any material Taxes of the Company;
(vj) change cancel any debts or waive, release or relinquish any material accounting principle used by it, except contract rights or other material rights other than in the ordinary course of business;
(k) knowingly take or agree or commit to take any action that would result in any of the Company's representations or warranties hereunder qualified as required by regulations promulgated by the SECto materiality being untrue and any such representations and warranties that are not so qualified being untrue in any material respect; or
(vil) authorize any ofmake, or commit or agree to take make, any ofcapital expenditure in excess of $100,000 including, without limitation, for the foregoing actionspurchase of real estate.
Appears in 1 contract
Sources: Merger Agreement (Somatogen Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this AgreementAgreement or as described in the Company Disclosure Document), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent the Company or a wholly-wholly owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares upon the exercise of Stock Options options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their current terms), purchase, redeem or (B) the issuance otherwise acquire or agree to acquire any shares of a number of Parent Shares, not to exceed 5% capital stock or other securities of the Parent Shares currently outstanding, in connection with the acquisition Company or any of assets or equity securities of other entities or businessesits subsidiaries;
(iii) amend any material term of any of its outstanding securities;
(iv) amend its Certificate of Incorporation, By-laws, laws or other comparable charter or organizational document;
(ivv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(vi) form any joint venture with any other person under circumstances wherein the Company and its subsidiaries would have any liability or obligation for a contribution to be evidenced by debt or equity of such venture in excess of $100,000;
(vii) sell, lease, mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(ix) make or incur any new capital expenditure not included in the Company's approved capital expenditure budget for 1999, which, singly or in the aggregate with all other expenditures, would exceed $1,000,000;
(x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material change in reserves for Tax items other than any change in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods;
(xi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice;
(xii) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxiv) enter into any new collective bargaining agreement;
(xv) change any material accounting principle used by it, except as required by regulations promulgated by the SECSEC or the Financial Accounting Standards Board;
(xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $250,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xvii) make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement; or
(vixviii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to --------------- the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent TMW shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent TMW shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent TMW to Parent TMW or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceTMW and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent TMW or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options, purchase of shares of TMW Common Stock to fund current requirements under employee benefit plans and except in connection with the Exchangeable Shares of ▇▇▇▇▇▇ Retail Group, Inc. ("MRG") and the Subscription Agreement between MRG and Golden Moores Finance Company;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of ParentTMW, (A) the issuance of Parent Shares TMW Common Stock upon the exercise of Stock Options stock options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Sharesshares of TMW Common Stock, not to exceed 510% of the Parent Shares number of shares of TMW Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses, (C) pursuant to the existing bank credit agreements of TMW and its subsidiaries, or (D) in connection with the Exchangeable Shares of MRG or the Subscription Agreement;
(iii) amend its Certificate TMW's Restated Articles of Incorporation, By-laws, or other comparable charter or organizational document;
(iv) acquire or agree to acquire any business, corporation, partnership, association, joint venture, limited liability company or other entity or division thereof involving the payment of consideration, in aggregate for all such acquisitions, in excess of $100 million without the written consent of the Company, which consent shall not be unreasonably withheld;
(v) adopt a plan of complete or partial liquidation of TMW or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vvi) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vivii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement Except as set forth in Exhibit 5.2, and except for any actions required to the Effective Time of the Merger (except as be performed by USMX or otherwise specifically contemplated by the terms of permitted pursuant to this Agreement), Parent USMX shall (and shall cause each of USMX Group Member to) conduct its significant subsidiaries to carry on their respective businesses business only in the usual, regular ordinary and ordinary usual course in substantially the same manner as heretofore conducted. Without limiting the generality all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, and business associates, and USMX shall not (and shall cause each USMX Group Member not to) do any of the foregoing, and except as otherwise expressly contemplated following:
(a) sell or pledge or agree to sell or pledge any capital stock owned by this Agreement, Parent shall not, and shall not permit it in any of its significant subsidiaries to:Subsidiaries;
(ib) amend its Certificate of Incorporation (Aor like charter documents) or By-laws;
(c) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock;
(d) declare, set aside or pay any dividends on, dividend or make any other distributions distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock;
(e) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock;
(f) enter into any material transaction not in the ordinary course of its business consistent with past practice;
(g) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock other than debentures or notes convertible into USMX Shares as contemplated in clause (Ih) dividends below or USMX Shares issuable pursuant to securities convertible into USMX Shares outstanding on the date hereof;
(h) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any property or assets or incur, guarantee, assume, or modify any indebtedness or other liability other than in the ordinary and distributions by any direct or indirect wholly-owned subsidiary usual course of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent business consistent with past practice, other than convertible debentures or notes issued by USMX or other indebtedness incurred by USMX in an aggregate principal amount of up to US$3 Million on terms and conditions acceptable to Dakota, acting reasonably;
(Bi) splitauthorize capital expenditures other than in the ordinary and usual course of business consistent with past practice;
(j) make any material acquisition of, combine or reclassify any of its investment in, assets, shares, capital stock or issue or authorize the issuance other securities of any other securities in respect of, in lieu of person or entity other than its wholly-owned Subsidiaries or in substitution for shares the ordinary and usual course of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesbusiness consistent with past practice;
(iik) issueexcept as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Law, deliverestablish, selladopt, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible enter into, or make, amend in any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current termsmaterial respect, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets make any material elections under any collective bargaining agreement or equity securities of other entities or businessesEmployee Plan;
(iiil) amend implement any change in its Certificate of Incorporationaccounting principles, By-lawspractices, or methods, other comparable charter or organizational document;than as may be required by generally accepted accounting principles; and
(iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(v) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vim) authorize or enter into any of, or commit or agree agreement to take any of, of the foregoing actionsactions referred to in this Section.
Appears in 1 contract
Sources: Merger Agreement (Usmx Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger Closing Date (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall each Company shall, and Seller shall cause each of its significant subsidiaries to Company to, carry on their respective its businesses in the usual, regular regular, and ordinary course in substantially the same manner as heretofore conductedconducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with, customers, suppliers, licensors, licensees, distributors, and others having business dealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent shall prior to the Closing Date the Companies will not, and shall not Seller will not, without the prior written consent of Buyer, permit any of its significant subsidiaries or allow the Companies to:
(i) (A) declare, set aside aside, or pay any dividends on, or make any other distributions (other than distributions to the Seller for amounts not exceeding their respective income tax liabilities) in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine combine, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem redeem, or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries each Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge pledge, dispose of, or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessescapital stock;
(iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational documentthe Company Charter Document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company, or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to each Company, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on, or otherwise encumber or dispose of any of its properties or assets, except (A) in the ordinary course of business consistent with past practice or (B) other transactions involving not in excess of $20,000.00 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of each Company, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, and (2) indebtedness incurred to refund, refinance, or replace indebtedness for borrowed money outstanding on the date hereof, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than employees of each Company in the ordinary course of business consistent with past practice;
(vii) make or incur capital expenditures in the aggregate in excess of $20,000;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge, or satisfy any claims, liabilities, or obligations (accrued, asserted or unasserted, contingent, or otherwise), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, each Company Balance Sheet;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which each Company is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization recapitalization, or reorganization;
(vxii) change any material accounting principle used by it;
(xiii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid in settlement or compromise does not exceed $10,000.00;
(xiv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director, or employee, except as that, each Company may hire additional employees to the extent deemed by its management to be in the best interests of the relevant Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company benefit plan (other than amendments required by regulations promulgated by law); (C) grant any increases in employee compensation, other than in the SECordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or
(vixv) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Growing Systems, Inc.)
Ordinary Course. During Except as expressly provided or permitted herein, or as consented to in writing by Buyer, during the period from commencing on the date of this Agreement to and ending on the Effective Time of Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the Merger (except as otherwise specifically contemplated by the terms of this Agreement“Pre-Closing Period”), Parent shall Seller will cause the Company to act and shall cause each of its significant subsidiaries to carry on their respective the Company’s businesses in the usualOrdinary Course of Business, regular maintain and ordinary course in substantially preserve the same manner as heretofore conductedCompany’s business organization, assets and properties, preserve the Company’s business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it and keep available the services of the present officers, employees and consultants of the Company. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreementprovided or permitted herein, Parent during the Pre-Closing Period, the Company shall not, and shall not permit directly or indirectly, do any of its significant subsidiaries tothe following without the prior written consent of Buyer:
(i) (A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock or other equity securities, other than (I) dividends except that the Company may make distributions to the Seller in sufficient amount to pay federal, state and distributions by any direct or indirect wholly-owned subsidiary local income taxes, at the highest marginal tax rates applicable to Seller on the net distributive share of Parent the Company’s income, losses, deductions and credits that have been separately stated and passed through to Parent or a wholly-owned subsidiary the Seller under Section 1366 of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Code, (B) provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its capital stock or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) any of its other securities; or purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares capital stock or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such sharescapital stock, voting securities or convertible or exchangeable securities (other than, in the case of Parent, (A) than the issuance of Parent Shares shares of capital stock upon the exercise of Stock Options options or warrants outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesAgreement);
(iii) amend its Certificate any of Incorporation, By-laws, the Organizational Documents or other comparable charter or organizational documentdocuments or enter into any new line of business or discontinue any existing line of business;
(iv) adopt a plan of complete acquire by merging or partial liquidation consolidating with, or resolutions providing for or authorizing such a liquidation by purchasing all or a dissolutionsubstantial portion of the assets or any stock of, mergeror by any other manner, consolidationany business or any corporation, restructuringpartnership, recapitalization joint venture, limited liability company, association or reorganizationother business organization or division thereof, or any assets that are material, in the aggregate, to the Company;
(v) change sell, lease, license, pledge, or otherwise dispose of or encumber any material accounting principle used by it, except as required by regulations promulgated by properties or material assets of the SEC; orCompany other than in the Ordinary Course of Business;
(vi) authorize knowingly or irrevocably waive any material right of the Company under any Material Contract;
(vii) (A) incur any Indebtedness other than draws under such Company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or pay any guaranty fees or other fees to any guarantor of any Indebtedness of the Company, (B) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (C) make any loans, advances or capital contributions to, or investment in, any other Person; provided, however, that the Company may, in the Ordinary Course of Business, invest in debt securities maturing not more than ninety (90) days after the date of investment, or (D) other than in the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company against fluctuations in commodities prices or exchange rates;
(viii) make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of the Threshold Amount in the aggregate;
(ix) make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP;
(x) except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of any current or former director, officer or employee, including a Company Benefit Plan or any collective bargaining agreement, (B) increase in any material respect the compensation or fringe benefits of, or commit pay any bonus to, any director, officer or agree employee, (C) accelerate the payment, right to payment or vesting of any material compensation or benefits, including any outstanding options or restricted equity awards, other than as contemplated by this Agreement, (D) grant any options to purchase capital stock, equity appreciation rights, equity based or equity related awards, performance units or restricted equity, or (E) take any ofaction other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under a Company Benefit Plan;
(xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the foregoing actionslimitation period applicable to any claim or assessment in respect of Taxes;
(xii) enter into or amend any contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder);
(xiii) commence, pay, discharge, settle or satisfy any lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Unaudited Balance Sheet and financial statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which the Company is a party;
(xiv) permit any material increase in the number of employees employed by the Company on the date hereof;
(xv) terminate or fail to renew any Governmental Authorization that is required for continued operations;
(xvi) enter into any collective bargaining agreement or union contract with any labor organization or union;
(xvii) accelerate or defer any obligation or payment by or to the Company, or not pay any accounts payable or other obligation of such Company when due and other than in the Ordinary Course of Business;
(xviii) decrease or defer in any material respect the level of training provided to the employees of such Company or the level of costs expended in connection therewith; and
(xix) fail to maintain insurance at levels at least comparable to current levels or otherwise in a manner inconsistent with past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Titan Energy Worldwide, Inc.)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement)The Company shall, Parent shall and shall cause each of its significant subsidiaries to --------------- Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and use its best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated required by this Agreementlaw, Parent shall not, and shall not permit neither the Company nor any of its significant subsidiaries toSubsidiaries shall:
(i) (Ax) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (I) except dividends and distributions by any a direct or indirect wholly-owned subsidiary Subsidiaries of Parent the Company to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practiceits parent), (By) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries Subsidiaries or any other securities thereof or of any rights, warrants or options to acquire any such shares or other securities;
(ii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option 40 Agreement dated as of April 13, 1993 by and among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other than, in the case of Parent, securities or equity equivalents (Aincluding without limitation stock appreciation rights) the issuance of Parent Shares other than isssuances upon the exercise of Stock Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date of this Agreement hereof and listed in accordance with their current terms, or (BSection 3.1(c) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessesCompany Disclosure Schedule;
(iii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and except as contemplated by this Agreement, adopt or amend its Certificate of Incorporationin any material respect any bonus, By-lawsprofit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other comparable charter employee benefit agreement, trust, plan or organizational documentother arrangement for the benefit or welfare of any director, officer or employee of the Company or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its Subsidiaries (in each case, except with respect to employees in the ordinary course of business consistent with past practice);
(iv) adopt a plan amend its certificate of complete incorporation, by-laws or partial liquidation equivalent organizational documents or resolutions providing for or authorizing such a liquidation or a dissolution, alter through merger, consolidationliquidation, restructuringreorganization, recapitalization restructuring or reorganizationin any other fashion the corporate structure or ownership of any Subsidiary of the Company;
(v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or 41 division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(vii) except for borrowings permitted under credit facilities filed as exhibits to the Company SEC Documents, incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to the Company or any direct or indirect wholly-owned Subsidiary of the Company;
(viii) change any material accounting principle used by it, except as unless required by regulations promulgated the SEC or the Financial Accounting Standards Board; and
(ix) except for the Option Exercise, enter into any transaction or series of transactions with any Affiliate of the Company (other than a wholly-owned Subsidiary of the Company) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Company or such Subsidiary as would be obtainable by the SEC; or
(vi) authorize any of, Company or commit or agree to take any of, such Subsidiary at the foregoing actionstime of such transaction with a Person that is not an Affiliate of the Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Metro-Goldwyn-Mayer Inc)
Ordinary Course. During The Company and the period from the date of this Agreement Significant Shareholders, severally (and not jointly), covenant that prior to the Effective Time of Closing, without Parent's written consent, the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent Company shall not, and shall not permit any of its significant subsidiaries to:
(ia) (A) declaresubject to the exceptions expressly set forth herein, set aside take or pay any dividends on, or make any other distributions in respect of, authorize any of its capital stock, other than the actions prohibited pursuant to Section 3.7(b);
(Ib) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of sell any other securities in respect of, in lieu of or in substitution for shares of its capital stock of any class (other than pursuant to exercised options), or (C) purchase, redeem issue or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or sell any securities convertible into, or any rightsoptions with respect to, or warrants to purchase or options rights to acquiresubscribe to, any shares of its capital stock of any class, or make any commitment to issue or sell any such sharesshares or securities; provided, voting securities however, that upon written notice to Parent, the Company may issue up to 250,000 stock options pursuant to the Company Stock Plan to employees eligible for such stock options;
(c) directly or convertible securities indirectly solicit or negotiate with respect to any inquiries or proposals from any person relating to: (i) the merger or consolidation of the Company with any person; (ii) the direct or indirect acquisition by any person of any of the assets of the Company (other than, than the sale of assets in the case ordinary course of Parentbusiness consistent with past practice, (Anot otherwise prohibited by this
Section 5.1) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (Biii) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets direct or equity indirect beneficial ownership or control of the Company or any securities thereof by any person; provided, however, that nothing contained herein shall prohibit the Board of other entities or businesses;
(iii) amend its Certificate Directors of Incorporation, By-lawsthe Company from furnishing information to, or other comparable charter entering into discussions or organizational document;
negotiations with (iv) adopt in each case pursuant to a plan of complete confidentiality agreement), any Person in response to any unsolicited offer or partial liquidation or resolutions providing for or authorizing proposal by such a liquidation or a dissolution, Person to acquire the Company pursuant to merger, consolidation, restructuringshare exchange, recapitalization business combination or reorganizationother similar transaction or to acquire all or substantially all of the assets of the Company, if, and only to the extent that, the Board of Directors of the Company, after consultation with outside legal counsel (which may include regularly engaged outside legal counsel), determines in good faith that such action is required to comply with its fiduciary duties to the Shareholders pursuant to applicable law;
(vd) change any material accounting principle used by it, except as required by regulations promulgated by law or as is consistent with GAAP, prepare or file any Tax Return of the SECCompany inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns of the Company in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or prior to the Closing Date); or
(vie) agree or commit to do or authorize any of, or commit or agree to take any of, of the foregoing actionsforegoing.
Appears in 1 contract
Sources: Supplemental Agreement (Combined Professional Services Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice in the ordinary course of business. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent the Company shall not, and shall not permit any of its significant subsidiaries of which it owns directly or indirectly more than 50% of the voting or equity interests in to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary of Parent the Company to Parent the Company or a wholly-wholly owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company and immaterial dividends, distributions and other similar transactions involving the existing subsidiaries, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares shares of Company Common Stock upon the exercise of Stock Options stock options and similar rights outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses);
(iii) amend its Certificate the Company's Articles of Incorporation, Incorporation or By-laws, or other comparable charter or organizational document;
(iv) acquire or agree to acquire any business, corporation, partnership, association, joint venture, limited liability company or other entity or division thereof;
(v) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except for such borrowings under the Company existing revolving credit facilities or letters of credit that would not result in the total outstanding indebtedness of the Company and its subsidiaries on a consolidated basis being in excess of $8,000,000 at any one time;
(vi) sell, lease, mortgage, pledge or gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practice, (B) immaterial liens not relating to the borrowing of money or the incurrence of any monetary obligation and (C) other immaterial transactions not in excess of $500,000 in the aggregate;
(vii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(viii) adopt a plan of complete or partial liquidation of the Company or any of its significant subsidiaries or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vix) change any material accounting principle used by it, except as required by regulations promulgated by the SEC; or
(vix) conduct any unusual liquidation of inventory or going out of business sale or any discount or other sale other than in the ordinary course of business consistent with past practices, including with respect to time of year, pricing, location and goods sold;
(xi) fail to advise TMW in writing of any contract, commitment or series of related contracts or commitments, for the purchase of inventory in excess of $250,000, and all such contracts and commitments less than or equal to $250,000, to the extent they aggregate more than $2,000,000, except for any contract or commitment disclosed in Section 4.1(a) of the Company Disclosure Letter;
(xii) fail to maintain insurance upon all its properties and with respect to the conduct of its business of such kinds and in such amounts as is current in effect;
(xiii) fail to provide to TMW copies of all financial statements and reports provided to any creditor of the Company or any of its subsidiary at the same time they are providing to such creditor; and
(xiv) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Formation Agreement to the Effective Time of the Merger Closing Date (except as otherwise specifically contemplated by the terms of this Formation Agreement), Parent shall GE Capital will cause Global to, and shall cause each of its significant subsidiaries to Global will, carry on their respective businesses its business in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it, in each case consistent with past practice, to the end that its goodwill and ongoing business shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Formation Agreement, Parent Global shall not, and GE Capital shall not permit any of its significant subsidiaries Global to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries Global or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businessessecurities;
(iii) amend its Certificate of Incorporation, Incorporation or By-laws, or other comparable charter or organizational document;
(iv) except for those contemplated transactions described on Schedule 4.2(a)(iv) attached hereto, acquire or agree to acquire any business, corporation, partnership, association, joint venture, limited liability company or other entity or division thereof involving the payment of consideration in excess of $1,000,000, individually or in the aggregate, without the written consent of Weat▇▇▇▇▇▇▇, ▇▇ich consent shall not be unreasonably withheld;
(v) incur any Indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except for such borrowings that would be repaid in full at Closing;
(vi) sell, lease, mortgage, pledge or gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or dispose of any of its properties or assets, except (A) sales or leases in the ordinary course of business consistent with past practice, (B) as may be required under Global's existing credit or debt facilities, (C) with respect to purchase money security interests, and (D) other transactions not in excess of $1,000,000 in the aggregate;
(vii) make any change in any election relating to Taxes or settle or compromise any Tax audit or controversy relating to Global or the Global Compression Business;
(viii) except for those contemplated corporate transactions described on Schedule 4.2(a)(viii) attached hereto, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vix) change any material accounting principle used by it, except as required by regulations promulgated by the SECGAAP; or
(vix) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Formation Agreement (Weatherford International Inc /New/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated required by the terms of this Agreement), the Parent shall and shall cause each of its significant subsidiaries to carry on their its respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, Governmental Entities, suppliers, insurers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by set forth in this Agreement, during such period, the Parent shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its their capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) split, combine or reclassify any of its their capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its their capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Parties or any of its their subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its their capital stock, any other voting securities or any securities convertible intointo any such shares; or issue, deliver, sell or grant any rights, warrants or options to acquire, acquire any such shares, voting securities or convertible securities other thansecurities; or issue, in deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into any agreement to do any of the case of Parentforegoing, (A) except for the issuance of Parent Shares upon the exercise of Stock the Parent Options or the Parent Warrants, all as outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses;
(iii) amend its Certificate their Certificates or Articles of Incorporation, By-laws, laws or other comparable charter or organizational document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Parent and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or otherwise dispose of any of their properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Parties or any of their subsidiaries, guarantee any debt securities of another person, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(vii) make or incur any new capital expenditure or expenditures not set forth in the Parent's capital budget for fiscal 1998, or in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to the other Parties), except for capital expenditures not in excess of $5,000 as to any single item and $10,000 in the aggregate;
(viii) make any election relating to Taxes or settle or compromise any Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Parent or incurred in the ordinary course of business consistent with past practice;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Parent or any of its subsidiaries is a party;
(xi) terminate or amend in any material respect any contract or agreement material to the Parent;
(xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxiii) except as expressly permitted by this Agreement, enter into any new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement disclosed in Section 4.2(t) of the Disclosure Schedule;
(xiv) change any material accounting principle used by itthe Parent, except insofar as any such change is required by regulations promulgated generally accepted accounting principles or by the rules and regulations of the SEC; or;
(vixv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with the Company, and, with respect to any such settlement, with the prior written consent of the Company;
(xvi) authorize any of, or commit or agree to take any of, the foregoing actions; or
(xvii) excluding inventory purchased for resale in the ordinary course of business, the Parent will not enter into any contracts or other material business obligations or commitments in excess of $10,000, or for a term longer than one year.
Appears in 1 contract
Ordinary Course. During Except as set forth in SCHEDULE 5(A)(a), during the period from the date of this Agreement to the Effective Time of the Merger Closing Date (except for transactions to which Purchaser or its affiliates are a party or as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this AgreementAgreement and the Schedules hereto, Parent the Company shall not, and shall not permit any of its significant subsidiaries Subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-wholly owned subsidiary Subsidiary of Parent the Company to Parent the Company or a wholly-wholly owned subsidiary Subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with the exercise of outstanding stock options and warrants and satisfaction of withholding obligations under outstanding stock options and restricted stock;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parentthe Company, (A) the issuance of Parent Shares shares of Common Stock upon the exercise of Stock Options stock options and warrants outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses;
(iii) amend its Certificate Articles of Incorporation, By-laws, laws or other comparable charter or organizational document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that, in each case, would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except purchases in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, grant a Lien on or otherwise encumb▇▇ ▇▇ ▇▇▇▇▇▇e of any of its properties or assets, except (A) sales or leases in the ordinary course of business consistent with past practice and (B) other immaterial transactions not in excess of $250,000 in the aggregate;
(vi) (A) incur indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business, or (B) make any loans, advances or capital contributions to, or investments in, any other Person that would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, other than to the Company or any direct or indirect wholly owned Subsidiary of the Company;
(vii) make or incur any new capital expenditure (other than purchases in the ordinary course of business), which, singly or in the aggregate with all other expenditures, would exceed $100,000;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Commission Documents or incurred in the ordinary course of business consistent with past practice;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by regulations promulgated by the SECCommission or as mandated by AICPA or similar accounting boards or bodies;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with the Purchaser, and, with respect to any such settlement, with the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed;
(xv) except for those contracts and agreements entered into in the ordinary course of business with the consent of the Purchaser, which consent shall not be unreasonably withheld or delayed, enter into any joint venture or partnership contract or agreement; or
(vixvi) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent the Company shall and shall cause each of its significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent the Company shall not, and shall not permit any of its significant subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent the Company to Parent the Company or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practicethe Company, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than, in the case of Parentthe Company, (A) the issuance of Parent Shares shares of Company Common Stock upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses);
(iii) amend its Certificate of Incorporation, By-laws, laws or other comparable charter or organizational document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, grant a Lien on or other▇▇▇▇ ▇▇cumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary course of business consistent with past practice, (B) the sale of buildings in Orville, Ohio and Glenrot▇▇▇, ▇cotland, and (C) other immaterial transactions not in excess of $250,000 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly-owned subsidiary of the Company;
(vii) make or incur any new capital expenditure, which, singly or in the aggregate with all other expenditures, would exceed $500,000;
(viii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(vxii) except as expressly permitted by this Agreement, enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as required by regulations promulgated by the SEC;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent; or
(vixv) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Bettis Corp /De/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each of its significant subsidiaries to carry on Subsidiaries shall conduct their respective businesses in only in, and shall not take any action except in, the usual, regular and ordinary course in substantially the same manner as heretofore conductedconsistent with past practice. Without limiting the generality of the foregoing Parent and its Subsidiaries shall use all commercially reasonable efforts to preserve intact in all material respects their present business organizations and reputation, to keep available the services of their key officers and employees, to maintain their assets and properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with customers and suppliers and others having significant business dealings with them and to comply in all material respects with all laws and orders of all Governmental or Regulatory Authorities applicable to them. Notwithstanding the foregoing, and except as otherwise expressly contemplated by this Agreement, Parent shall not, and nor shall not it permit any of its significant subsidiaries Subsidiaries to, except as otherwise expressly provided for in this Agreement:
(iA) amend or propose to amend Parent's certificate or articles of incorporation or bylaws (or other comparable charter documents);
(B) settle any shareholder or derivative or class action claims arising out of or in connection with any of the transactions contemplated hereby;
(C) (Aw) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock, other than (I) dividends except that Parent may continue the declaration and distributions by any direct or indirect wholly-owned subsidiary payment of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends, in each case with usual record and payment dates for such dividends declared or paid by Parent consistent in accordance with past dividend practice, (Bx) split, combine combine, reclassify or reclassify take similar action with respect to any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (A) the issuance of Parent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or (B) the issuance of a number of Parent Shares, not to exceed 5% of the Parent Shares currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses;
(iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational document;
(ivy) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationother reorganization or (z) directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any securities convertible into, or rights, warrants or options to acquire, any such shares;
(vD) acquire (by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner) any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of its business consistent with past practice;
(E) other than dispositions in the ordinary course of its business consistent with past practice, sell, lease, grant any security interest in or otherwise dispose of or encumber any of its assets or properties;
(F) except to the extent required by applicable law, make or rescind any material Tax election (unless required by law or necessary to preserve Parent's status as a REIT or the status of any of its Subsidiaries as a "qualified REIT subsidiary" under Section 856(i) of the Code, as the case may be), or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes or materially change any material accounting principle used by it, method of reporting income or deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for the most recent completed taxable year except as may be required by regulations promulgated by the SEC, applicable law or GAAP;
(G) enter into any Contract or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice or not on an arm's length basis, with any affiliate of Parent or any of its Subsidiaries or any of such affiliate's Subsidiaries; or
(viH) authorize enter into any ofContract, commitment or commit arrangement to do or agree to take engage in any of, of the foregoing actionsforegoing.
Appears in 1 contract