Parent Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will not, and will not permit any of the Parent Subsidiaries to, without the prior written consent of the Company: (a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance; (b) adjust, split, combine or reclassify any of Parent's capital stock; (c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements); (d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary; (e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement; (f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law; (g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice); (h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole; (i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business; (j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties; (k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP; (l) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or (m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines; (n) take, or agree to take, any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code; (o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or (p) agree or commit to take any of the actions prohibited by this Section 5.3.
Appears in 3 contracts
Samples: Merger Agreement (R H Donnelley Corp), Merger Agreement (Dex Media West LLC), Merger Agreement (Dex Media Inc)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in Section 5.3 the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, Parent will shall not, and will shall not permit any of its Subsidiaries (to the Parent Subsidiaries extent applicable below) to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments and other than indebtedness of Parent Certificate or any Parent Bylaws in a manner that would adversely affect the economic benefits of the wholly owned Parent Subsidiaries Merger to Parent or any the holders of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCompany Common Stock;
(b) (i) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
, or (cii) make, declare or pay declare or pay any dividend, or make dividend on any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock Parent (except regular quarterly cash dividends by Parent at a rate not in excess of $0.15 per share of Parent Common Stock);
(ic) dividends paid by incur any indebtedness for borrowed money (other than indebtedness of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries to Parent or any of its Subsidiaries) that would reasonably be expected to prevent Parent or its Subsidiaries from assuming the Company’s outstanding indebtedness;
(d) (i) enter into agreements with respect to, or consummate, any mergers or business combinations, or any acquisition of any other person or business or (ii) dividends paid onmake capital contributions to, or conversion ofinvestments in, Parent Preferred Stock outstanding on any other person, in each case of clauses (i) and (ii), that would reasonably be expected to prevent, impede or materially delay the date hereof in accordance with consummation of the certificate Merger or receipt of designation for such Parent Preferred StockRegulatory Approvals, and or (iii) the acceptance adopt or publicly propose a plan of shares of Parent Common Stock as payment complete or partial liquidation or resolutions providing for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Optionsauthorizing such a liquidation or a dissolution, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent SubsidiaryParent;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Section 7.1 or 7.3 not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelineslaw;
(nf) take, or agree to take, take any action that would or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent or impede the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(pg) agree to take, make any commitment to take, or commit to take adopt any resolutions of its board of directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Cadence Bancorporation), Merger Agreement (State Bank Financial Corp)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or the earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments and other than indebtedness of Parent Certificate or any Parent Bylaws in a manner that would adversely affect the economic benefits of the wholly owned Parent Subsidiaries Integrated Mergers to Parent or any the holders of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCompany Common Stock;
(b) (i) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
, or (cii) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) regular quarterly cash dividends or dividends paid by any of the wholly owned Subsidiaries of Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries);
(c) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation would reasonably be expected to (i) impose any material delay in the obtaining of, or significantly increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on significantly increase the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction risk of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Lawhereby, or (iii) materially delay the consummation of the transactions contemplated hereby;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(ld) take any action that is intended or would be reasonably likely to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger Integrated Mergers set forth in Article VII not being satisfiedsatisfied or in a violation of any provision of this Agreement, except except, in every case, as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelineslaw;
(ne) taketake any action, or agree knowingly fail to taketake any action, any where such action that or failure to act would reasonably be expected to prevent the Merger Integrated Mergers, taken together, from qualifying being treated as an integrated transaction that qualifies as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(pf) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Cape Bancorp, Inc.)
Parent Forbearances. During Without limiting the period from the date generality of this Agreement to the Effective TimeSection 5.1 above, except as set forth in Section 5.3 of the Parent Disclosure Schedule (subject to Section 6.1(c)) Letter, and except as required by Law or as expressly contemplated or permitted by this AgreementAgreement or as required by applicable Law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, delayed or conditioned):
(a) incur (i) declare, set aside or pay any indebtedness for borrowed money (except for indebtedness contemplated by dividends on, make any other distributions in respect of, or enter into any agreement with respect to the Financing Commitments and other than indebtedness of Parent or voting of, any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiariesits capital stock; (ii) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(b) adjust, split, combine or reclassify any of Parent's 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;
, except upon the exercise of stock options or settlement of stock units that are outstanding as of the date of this Agreement in accordance with their present terms; or (ciii) makepurchase, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase redeem or otherwise acquire, acquire any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid onother securities, or conversion ofgrant any rights, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, acquire any such shares or Parent Voting Debtother securities, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practicepractice and other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, increase vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the wagesdate of this Agreement in accordance with their present terms and Parent’s practices as of the date of this Agreement;
(b) amend its articles of incorporation, salaries, compensation, bonus, pension bylaws or other benefits comparable Organizational Documents;
(c) acquire or perquisites payable agree to acquire by merging or consolidating with, or by purchasing any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan assets or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting equity securities of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment ofby any other manner, any compensation business or benefits under any Parent Benefit Plan; providedPerson if, howeverin each case, that in no event it may any such acceleration of vestingreasonably be expected to prevent, lapse of restrictions materially delay or funding be as a result of the execution and delivery of this Agreement or materially impede the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawAgreement;
(gd) sell, assign, transfer, mortgagelease, license, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a wholeor create any security interest in such assets or properties that, in any transaction ease case, would have, or series of transactionswould reasonably be expected to have, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent SubsidiaryMaterial Adverse Effect, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholecase, other than in the ordinary course of business consistent with past practice);
(he) enter into any new line of business except for borrowings under its existing Credit Agreements that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) are incurred in the ordinary course of business consistent with past practice, incur, redeem, prepay, repurchase, defease, cancel, or modify the terms of, any Indebtedness or assume, guarantee or endorse, or otherwise become responsible for the Indebtedness of any Person (iiother than any of its wholly owned Subsidiaries) settlements if, in each case, it would have, or would reasonably be expected to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30have, 2005 in accordance with GAAPa Parent Material Adverse Effect;
(lf) except as contemplated by this Agreement or as required by agreements or instruments in effect on the date of this Agreement, alter in any material respect, fail to satisfy or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity or ownership interest on the date of this Agreement if, in each case, it may reasonably be expected to prevent, materially delay, or materially impede the consummation of the transactions;
(g) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeaction, or agree knowingly fail to take, take any action that within its control, which action or failure to act would reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(oh) except adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent (other than the Merger);
(i) fail to comply in all material respects with the ordinary course Securities Act, the Exchange Act or the Xxxxxxxx-Xxxxx Act in respect of business, sell, assign, abandon, license, all Parent SEC Documents filed with or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material furnished to, as applicable, the business of Parent and the Parent SubsidiariesSEC; or
(pj) commit or agree or commit to take any of the actions prohibited contemplated by this Section 5.35.3(a) through Section 5.3(i) above.
Appears in 2 contracts
Samples: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) Schedule, and except as required by Law for the previously announced transactions with Bank of Kentucky Financial Corporation and Citibank N.A., with respect to the 41 retail branches in Texas (including any actions related to or in furtherance of obtaining regulatory approvals or completing such transactions), as expressly contemplated or permitted by this Agreement, as required by law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Susquehanna (such consent not to be unreasonably withheld):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments Parent Articles or the Parent Bylaws in a manner that would materially and adversely affect the holders of Susquehanna Common Stock, or adversely affect the holders of Susquehanna Common Stock relative to other than indebtedness holders of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCommon Stock;
(b) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person individual, corporation or other entity other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent wholly owned Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent or in a transaction that, together with past practice)such other transactions, is not reasonably likely to cause the Closing to be materially delayed or the receipt of the Requisite Regulatory Approvals to be prevented or materially delayed;
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(id) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Personindividual, corporation or make any capital expendituresother entity, in each case other than (i) investments in a wholly owned Subsidiaries or (ii) acquisitions Subsidiary of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingParent, except (i) for transactions in the ordinary course of business or (ii) settlements in a transaction that, together with such other transactions, is not reasonably likely to cause the extent subject Closing to and not in excess be materially delayed or the receipt of reserves that relate the Requisite Regulatory Approvals to the matter being settled existing as of June 30, 2005 in accordance with GAAPbe prevented or materially delayed;
(le) merge or consolidate itself or any of its Significant Subsidiaries with any other person where it or its Significant Subsidiary, as applicable, is not the surviving person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Significant Subsidiaries;
(f) take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that would where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(og) except in knowingly take any action that is intended to or would reasonably be likely to adversely affect or materially delay the ordinary course ability of business, sell, assign, abandon, license, Parent or otherwise dispose its Subsidiaries to obtain any necessary approvals of any Intellectual Property that is used in Governmental Entity required for the conduct of, transactions contemplated hereby or is otherwise material to, by the business of Parent Bank Merger Agreement or to perform its covenants and agreements under this Agreement or the Parent SubsidiariesBank Merger Agreement or to consummate the transactions contemplated hereby or thereby; or
(ph) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Susquehanna Bancshares Inc), Merger Agreement (Bb&t Corp)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except (x) as set forth in the Parent Disclosure Schedule Schedule, (subject to Section 6.1(c)y) and except as required by Law or as expressly contemplated or permitted by this AgreementAgreement or (z) as required by applicable Law or required or requested by a Governmental Entity, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, delayed or conditioned):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and money, other than indebtedness (i) in connection with the Financing, (ii) intercompany indebtedness, (iii) borrowings under any revolving credit facility or commercial paper program existing on the date of Parent this Agreement up to the amount committed thereunder on the date of this Agreement (or any amendment or replacement thereof, in each case, so long as the amount of borrowings under such amended or replaced facility or program is not greater than the committed amount of such facility or program on the date of this Agreement) and (iv) any indebtedness incurred to refinance, roll over, replace or renew any indebtedness, so long as, in each case of this clause (iv), the principal amount of such refinancing, roll-over, replacement or renewed indebtedness is not greater than the principal amount of the wholly owned Parent Subsidiaries to Parent indebtedness being refinanced, rolled over, replaced or renewed (plus accrued interest, and a reasonable amount of fees and expenses incurred in connection with such refinancing), and such new indebtedness does not limit or require the payment of any of the wholly owned Parent Subsidiaries premium or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible penalty for the obligations of any other individual, corporation or other entity, or make any loan or advanceprepayment thereof;
(b) amend the Parent Articles or the Parent Bylaws in a manner that would materially and adversely affect holders of Company Common Stock, or adversely affect holders of Company Common Stock relative to other holders of Parent Common Stock;
(c) (i) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
; (cii) other than quarterly dividends paid by Parent consistent with past practice as to timing and amount, make, declare or pay any dividenddividend on its capital stock, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock stock, except for (except (iA) dividends paid by any of the wholly owned Subsidiaries of Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, Subsidiaries or (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iiiB) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock OptionsOptions or the vesting or settlement of Parent Equity Awards and dividend equivalents thereon, if any; (iii) grant any Parent Equity Awards or other equity-based awards or interests, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock (in each case, other than such grants that would not require the consent of the Company under Section 5.3(i)); or (iv) issue, deliver, sell or otherwise permit to become outstanding any additional shares of capital stock or securities convertible or exchangeable into, or exercisable for, any shares of its capital stock or any options, warrants or other rights of any kind to acquire any shares of capital stock, in each case, in accordance with past practice and in accordance with applicable Law and except for the terms issuance of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to upon the exercise of Parent Stock Options Options, the vesting or settlement of Parent Equity Awards (and dividend equivalents thereon, if any), the issuance of Parent Common Stock under the Parent ESPP (or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and replacement plan thereof) in accordance with the terms and conditions of such plan as in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business and consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(gd) sell, transfer, mortgage, encumber encumber, subject to a Lien (other than a Permitted Encumbrance) or otherwise dispose of any of its properties or assets, except (i) as provided in Section 5.3(d) of the Parent Disclosure Schedule, (ii) properties or assets associated with discontinued operations, or (iii) to the extent that such sales, transfers, mortgages, encumbrances, properties or assets that are material become subject to Parent and a Lien or dispositions would not exceed $15,000,000 individually or $30,000,000 in the Parent Subsidiariesaggregate;
(e) transfer, taken as a wholesell, in any transaction or series of transactionslease, to any Person license (other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than licenses granted in the ordinary course of business consistent with past practice), subject to a Lien (other than a Permitted Encumbrance), divest, cancel, abandon, dedicate to the public or allow to lapse or expire or otherwise dispose of any material Intellectual Property Rights owned by Parent or any of its Subsidiaries;
(hf) enter into acquire any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) assets or make any material acquisition or investment investment, either by purchase of stock or securities, contributions to capital, property transfers, transfers or by purchase of any property or assets of any other individual, corporation or other entity, except (i) as provided in Section 5.3(f) of the Parent Disclosure Schedule, (ii) for acquisitions or investments in connection with ordinary course purchases in connection with normal day-to-day business operations consistent with past practices, (iii) capital expenditures incurred in the ordinary course consistent with past practices, (iv) acquisitions of assets from, or investments in, any of the Subsidiaries of Parent or (v) to the extent that such acquisitions or investments would not exceed $15,000,000 individually or $30,000,000 in the aggregate;
(g) terminate, materially and adversely amend, or waive any material provision of, any Parent Contract, in each case, other than terminations, amendments and waivers in the ordinary course of business consistent with past practices;
(h) enter into any agreement, arrangement or understanding that would constitute a Parent Related Party Contract;
(i) except as required by the terms of any Parent Benefit Plan or any Parent Labor Agreement as in effect on the date hereof, (i) materially increase or change the compensation or benefits payable to any Parent Related Person (including through changes in actuarial or other assumptions, loan forgiveness or otherwise), other than in the ordinary course of business consistent with past practices or as required by applicable Law, (ii) grant any new long-term incentives or equity-based awards, or amend or modify the terms of any such outstanding awards, (iii) grant any transaction or retention bonuses, (iv) pay annual bonuses, other than for completed periods based on actual performance through the end of the applicable performance period, (v) increase or change the severance terms applicable to any Parent Related Person, or make (vi) become a party to, establish, adopt, amend, commence participation in or terminate any capital expendituresParent Benefit Plan or any arrangement that would have been a Parent Benefit Plan had it been entered into prior to this Agreement, other than solely with respect to this clause (vi), (x) any such amendment that does not materially increase the cost to Parent or its applicable Subsidiaries of maintaining such Parent Benefit Plan or (y) renewing the term of any Parent Benefit Plan (including, in each the case of Parent Benefit Plans that are health and welfare plans, renewing or entering into replacement insurance contracts underlying or used in connection with such Parent Benefit Plans) in the ordinary course of business consistent with past practices, with such changes that do not substantially increase the cost of providing benefits thereunder to Parent and its applicable Subsidiaries;
(j) enter (or commit to enter) into, modify, amend, terminate or extend any collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization or works council, other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries extensions in the ordinary course of business;
business consistent with past practice or (jii) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third partiesLabor Agreement;
(k) settle any material claim, action or proceedingAction, except (i) in the ordinary course an amount and for consideration, in respect of business any Action or (ii) settlements to the extent subject to and series of related Actions, not in excess of reserves $25,000,000 individually or $75,000,000 in the aggregate and that relate to would not impose any material restriction on the matter being settled existing as business of June 30, 2005 in accordance with GAAPParent or any of its Subsidiaries after the Closing;
(l) knowingly take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that where such action or failure to act would reasonably be expected to prevent the Merger or, without limiting Section 6.18, any Alternative Transaction, from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(m) merge or consolidate itself or any of its Significant Subsidiaries with any other person, or restructure, reorganize or completely or partially liquidate or dissolve itself or any of its Significant Subsidiaries, in each case, except if such merger, consolidation, restructuring or reorganization is solely between or among Parent Subsidiaries or is permitted under an exception set forth in Section 5.3(d) or Section 5.3(f);
(n) implement or adopt any material change in its accounting principles, practices or methods, other than as may be required by GAAP or IFRS;
(o) except (i) enter into any new line of business outside its existing business other than any line of business that is reasonably ancillary to and a reasonably foreseeable extension of an existing line of business or (ii) discontinue any existing line of business, in each case of clauses (i) and (ii), to the extent that such entry or discontinuance would reasonably be likely to (A) have a material adverse impact on Parent and its Subsidiaries, taken as a whole, or (B) prevent or materially impair the ability of Parent to consummate the Merger and the transactions contemplated by this Agreement;
(p) (i) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method or file any material amended Tax Return, in each case, other than in the ordinary course of business or (ii) enter into any material closing agreement with respect to Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any right to claim a refund of a material amount of Taxes, other than in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(pq) agree to take, make any commitment to take, or commit to take adopt any resolutions of the Parent Board or similar governing body in support of, any of the actions prohibited by this Section 5.3. Other than the Company’s right to consent or withhold consent with respect to the foregoing matters, nothing contained in this Agreement shall give the Company (or any of its affiliates), directly or indirectly, any right to control or direct the operation of Parent or its Subsidiaries prior to the Closing. Subject to the foregoing sentence and consistent with the terms of this Agreement, prior to the Closing, Parent and its Subsidiaries shall exercise complete control and supervision of the operation of Parent and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Worldpay, Inc.)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as expressly set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by applicable law or binding regulatory guidance, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments Parent Charter or the Parent Bylaws in a manner that would materially and adversely affect the holders of Company Common Stock, or adversely affect the holders of Company Common Stock relative to other than indebtedness holders of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCommon Stock;
(b) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
(c) Parent or make, declare or pay any dividend, or make extraordinary dividend on any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or of Parent;
(c) incur any securities or obligations convertible indebtedness for borrowed money (whether currently convertible or convertible only after the passage other than indebtedness of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries to Parent or any of its Subsidiaries, (ii) dividends paid on, that would reasonably be expected to prevent Parent or conversion of, Parent Preferred Stock its Subsidiaries from assuming Company’s or its Subsidiaries’ outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements)indebtedness;
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person individual, corporation or other entity other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent wholly owned Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent or in a transaction that, together with past practice)such other transactions, is not reasonably likely to cause the Closing to be materially delayed or the receipt of the Requisite Regulatory Approvals to be prevented or materially delayed;
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(ie) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Personindividual, corporation or make any capital expendituresother entity, in each case other than (i) investments in a wholly owned Subsidiaries or (ii) acquisitions Subsidiary of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingParent, except (i) for transactions in the ordinary course of business or in a transaction that, together with such other transactions, is not reasonably likely to cause the Closing to be materially delayed or the receipt of the Requisite Regulatory Approvals to be prevented or materially delayed;
(f) merge or consolidate itself or any of its Significant Subsidiaries with any other person (i) where it or its Significant Subsidiary, as applicable, is not the surviving person or (ii) settlements if the merger or consolidation is reasonably likely to cause the extent subject Closing to and not in excess be materially delayed or the receipt of reserves that relate the Requisite Regulatory Approvals to the matter being settled existing as be prevented or materially delayed, or restructure, reorganize or completely or partially liquidate or dissolve it or any of June 30, 2005 in accordance with GAAPits Significant Subsidiaries;
(lg) take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that would where such action or failure to act could reasonably be expected to prevent the Merger Mergers, taken together, from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(oh) except in knowingly take any action that is intended to or would reasonably be likely to adversely affect or materially delay the ordinary course ability of business, sell, assign, abandon, license, Parent or otherwise dispose its Subsidiaries to obtain any necessary approvals of any Intellectual Property that is used in Governmental Entity required for the conduct of, transactions contemplated hereby or is otherwise material to, the business of Requisite Parent Vote or to perform its covenants and agreements under this Agreement or to consummate the Parent Subsidiariestransactions contemplated hereby; or
(pi) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (First Horizon National Corp)
Parent Forbearances. During Except (i) as set forth in Section 6.3 of the Parent Disclosure Schedule, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable law, rule or regulation, or by any Governmental Entity, (iv) as required by a Parent Benefit Plan or any agreement in effect on the date hereof of which the Company has been notified and provided a true and correct copy prior to the date of this Agreement, and (v) with the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(bi) adjust, split, combine or reclassify its capital stock (unless the Exchange Ratio and/or Merger Consideration is adjusted to take into account such adjustment, split, combination or reclassification), (ii) set any record or payment dates for the payment of Parent's any -42- dividends or distributions on its capital stock;
(c) stock or make, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, on any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, except for (x) Parent’s regular quarterly cash dividends and (y) any wholly owned Subsidiary of the Parent may declare and pay dividends to its parent and other wholly owned Subsidiaries of the Parent, (iii) engage in any material repurchase of, or any recapitalization or other change, restructuring or reorganization with respect to, Parent Stock, or (iv) grant any stock appreciation rights or grant any Person any right to acquire any shares of its capital stock except in the ordinary course of business, or issue, or commit to issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale grant, disposition, pledge or other encumbrance of, any additional shares of capital stock (except (i) dividends paid by any pursuant to the exercise of stock options or vesting or settlement of awards under the wholly owned Parent Subsidiaries to Parent or to any Stock Plans outstanding as of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stockor permitted to be issued under this Section 6.3), and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options any securities convertible into or for withholding taxes incurred in connection with the exercise of Parent Stock Optionsexercisable for, in each caseor any rights, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue warrants or options to acquire, any additional shares of capital stock, any Parent Voting Debt or any other securities convertible into in respect of, in lieu of, or exchangeable in substitution for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of its capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect outstanding on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(gb) sell, transfer, mortgage, encumber or otherwise dispose of any of its material assets or material properties to any Person (other than a direct wholly owned Subsidiary), by merger, consolidation, asset sale or other business combination (including formation of a joint venture) except (i) in the ordinary course of business, including sales of repossessed assets, (ii) dispositions of obsolete or worthless assets, (iii) sales of loans, receivables and other assets that are material to in the ordinary course of business and (iv) sales of immaterial assets which involve the sale of assets with a purchase price of $1,000,000 or less in any single case or $5,000,000 in all such cases;
(c) (i) alter through merger, liquidation, reorganization, restructuring or in any other manner the corporate structure or organization of Parent and the Parent Subsidiaries, taken as a whole, or (ii) engage in any action or enter into any transaction or series of transactions, or permit any action to be taken or transaction or series of transactions to be entered into, that, in the case of either clause (i) or clause (ii), could reasonably be expected to delay the consummation of, or otherwise adversely affect, the Merger or any of the other Transactions, including withdrawing or modifying, in a manner adverse to the Company, the approval by the Parent Board of this Agreement, the Merger or the issuance of Parent Stock;
(d) make any investment or acquisition, by purchase or other acquisition of stock or other equity interests, by merger, consolidation, asset purchase or other business combination, or by contributions to capital; or make any material purchases of any property or assets, in or from any other Person other than Parent or a Parent wholly owned Subsidiary or cancelof the Parent, release or assign to any such Person any indebtedness or any claims held except (i) as otherwise permitted by Parent or any Parent Subsidiary, in each case that is material to Parent this Section 6.3 and the Parent Subsidiaries, taken as a whole, (ii) other than acquisitions in the ordinary course of business consistent with past practice)and, in any case, involving consideration in an aggregate amount not in excess of $10,000,000;
(he) enter into adopt any new line of business that is material amendments to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws of Parent (or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions documents of any confidentiality of Subsidiary of Parent) which would alter any of the terms of Parent Stock or standstill agreements in place with create any third partiesseries or class of capital stock that is senior to Parent Stock;
(kf) settle incur any material claimindebtedness for borrowed money, action issue any debt securities or proceedingassume, guarantee or endorse or otherwise become responsible for the obligations of another Person, in each case, except (i) in the ordinary course of business consistent with past practice or (ii) settlements in -43- connection with the Debt Financing or any Alternative Financing and the use of Parent’s revolving credit facility to consummate the Merger and the transactions contemplated hereby;
(g) incur any secured indebtedness to the extent subject to and not in excess that the liens securing such indebtedness would be permitted solely by Section 6.02(xvii) of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAPParent Credit Agreement;
(lh) except as permitted by this Agreement, take any action that is intended or would reasonably be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Section 8.1 or 8.3 not being satisfied, except as may be required by applicable Law; or
(mi) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeagree to, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material commitment to, the business of Parent and the Parent Subsidiaries; or
(p) agree take or commit to take announce any of the actions prohibited by this Section 5.36.3.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective Time, except Except as set forth in Section 5.02 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, neither Parent will notnor Merger Sub shall, and will not nor shall Parent permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (which consent the Company shall use its reasonable best efforts to provide or withhold within five Business Days of Parent’s request therefor, and which consent otherwise shall not be unreasonably withheld, delayed or conditioned):
(a) incur amend, repeal or otherwise modify any indebtedness for borrowed money (except for indebtedness provision of the Parent Certificate or the Parent Bylaws in a manner that would adversely affect Company, the stockholders of Company or the transactions contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advancethis Agreement;
(b) adjust, split, combine or reclassify any of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquireacquire (except for the acceptance or withholding of shares of Parent Common Stock in payment of the exercise price or withholding Taxes incurred by any employee or director in connection with the exercise of options to acquire Parent Common Stock or stock appreciation rights or the vesting of restricted shares or settlement of other equity-based awards in respect of Parent Common Stock granted under a benefit plan maintained by Parent, in each case as in effect on the date hereof), any shares of its capital stock stock, voting securities, other equity interests or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock stock, voting securities or other equity interests (except (i) dividends paid by any of the wholly owned subsidiary to its parent or as required under the indenture applicable to the issued and outstanding 5.25% Convertible Senior Notes of Parent);
(c) grant any person any right to acquire shares of its capital stock, voting securities or other equity interests except for the issuance of stock options 48 to acquire Parent Subsidiaries Common Stock to employees or directors of Parent or to any its Subsidiaries in the ordinary course of its wholly owned Subsidiaries, (ii) dividends paid onbusiness, or conversion ofthe taking of any action to effect the exercise, Parent Preferred Stock outstanding on the date hereof cash-out or settlement of any restricted stock unit, stock option or performance share or other equity or equity-based award (other than in accordance connection with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares an issuance of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreementspermitted by Section 5.02(d)(i));
(d) issue any additional shares of capital stockstock or other equity securities or other equity or equity-based awards, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debtincluding cash-settled awards, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary issuance of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and securities not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would be reasonably likely to result in any 15% of the conditions to the Merger set forth outstanding shares of Parent Common Stock in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, an underwritten transaction or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(p) agree or commit to take any of the actions prohibited by this Section 5.3.on arms’ length terms,
Appears in 1 contract
Samples: Merger Agreement
Parent Forbearances. During the period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with Article VIII or the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or the rules and regulations of the SEC or as expressly contemplated or permitted by this Agreement, Parent will not, and will not permit any of the Parent Subsidiaries to, without the prior written consent of the Company:Diffusion (which shall not be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money amend its Organizational Documents (except for indebtedness contemplated whether by the Financing Commitments and other than indebtedness of Parent merger, consolidation or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceotherwise);
(b) adjustexcept as contemplated by Section 6.8, (i) split, combine or reclassify any of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock stock, or propose to split, combine or reclassify, any of its share capital, or issue or authorize or propose the issuance or authorization of any other securities in respect of, or obligations convertible (whether currently convertible in lieu of or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any in substitution for, shares of its share capital, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (stock, except (i) dividends paid by any of the a direct or indirect wholly owned Subsidiary of Parent Subsidiaries to Parent or to any of its Parent’s other direct or indirect wholly owned Subsidiaries, Subsidiaries (iito the extent that any such dividends do not result in any Subsidiary of Parent breaching or otherwise violating any applicable regulatory capital requirements or becoming subject to any additional regulatory oversight or reporting requirements) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of Parent Common Stock as payment for the exercise price Parent’s (or any of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(dits Subsidiaries’) issue any additional shares of share capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, exercisable for any shares of Parent’s (or any warrants of its Subsidiaries’) share capital, other than repurchases, redemptions or options to acquireacquisitions by Parent or any wholly owned Subsidiary of Parent of share capital or such other securities, as the case may be, of any such shares or Parent Voting Debtother wholly owned Subsidiary of Parent;
(c) except as contemplated by Section 6.8, except (i) pursuant to issue, deliver, pledge or sell, or authorize the issuance, delivery or sale of, any Parent Stock, Equity Equivalents or shares of capital stock of any Parent Subsidiary, other than the issuance of (A) any Parent Stock upon the exercise of Parent Stock Options or Parent Warrants that are outstanding on the satisfaction date of any Parent Stock-Based Awards, in each case, outstanding and this Agreement in accordance with the terms and conditions in effect as of the Parent Stock Plans or Parent Warrants on the date of this Agreement and (B) any capital stock of any Parent Subsidiary to Parent or issued thereafter in compliance with this Agreement, any other Parent Subsidiary or (ii) upon amend any term of any Parent Stock or Equity Equivalent (in each case, whether by merger, consolidation or otherwise);
(d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for (i) those contemplated by the conversion of convertible securities outstanding as capital expenditure budget set forth in Section 5.2(d) of the date of this Agreement, or Parent Disclosure Schedule and (iiiii) for issuances by a wholly owned Parent Subsidiary of any unbudgeted capital stock expenditures not to such Subsidiary's parent or another wholly owned Parent Subsidiaryexceed $25,000 in the aggregate;
(e) notwithstanding acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any other provision hereofassets, increasesecurities, decreaseproperties, change interests or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganizationbusinesses, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) supplies, equipment, inventory or other than assets in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, practice and/or (ii) acquisitions with a purchase price net of the total of assumed liabilities (including all operating liabilities, reserves and indebtedness) that does not exceed $25,000 in the aggregate;
(f) sell, lease, sublease, exchange or otherwise transfer, or create or incur any Lien, other than a Permitted Lien, on, any of Parent’s or any of its Subsidiaries’ assets, securities, properties, interests or businesses, or grant or increase any severance, change of control, termination or similar compensation or benefits payable option with respect to any current or former directorof the foregoing, officer or employee, other than (iiii) except sales of inventory in the ordinary course of business and consistent with past practice pay any bonusand/or (ii) other sales of assets, securities, properties, interests or businesses with a sale price or carrying value net of the total of assumed liabilities (ivincluding all operating liabilities, reserves and indebtedness) adopt, enter into, terminate or amend that does not exceed $25,000 in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, the aggregate;
(vg) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment actions permitted by Section 5.2(d) or election of new directors Section 5.2(e), make any loans, advances or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect capital contributions to, or fund or otherwise secure the payment ofinvestments in, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholePerson, other than in the ordinary course of business consistent with past practice)practice or loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of Parent;
(h) enter into create, incur, assume, suffer to exist or otherwise be liable with respect to any new line indebtedness for borrowed money or guarantees thereof (including reimbursement obligations with respect to letters of credit), other than (i) in replacement of existing or maturing debt, and (ii) draw downs pursuant to existing credit facilities and letters of credit in support of Parent’s and its Subsidiaries’ business that is material to Parent and the Parent Subsidiaries, taken as a wholeconsistent with past practice;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries increase the base salary, bonus or commission opportunity or other material compensation or material benefits of any (A) officer of (B) employee or independent contractor whose annual base salary or rate of pay is equal to or greater than $50,000 (or would be equal to or greater than $50,000 after such increase), (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sellconsistent with past practice, assignincrease the base salary, abandonwages or annual bonus or commission opportunity of any employee or independent contractor not described in clause (i) above, license(iii) increase or enhance the severance benefits, retirement benefits, change in control benefits, retention benefits, deferred compensation benefits, equity compensation benefits or other material compensation or material benefits of any employee, officer, director or independent contractor, (iv) establish, materially amend or terminate any Parent Benefit Plan (or any plan, program, contract or arrangement that would be a Parent Benefit Plan if it was in effect on the date of this Agreement), other than (A) amendments required by Law or to maintain Tax-qualified or registered status of any Parent Benefit Plan or (B) as set forth in Section 5.2(i) of the Parent Disclosure Schedule;
(j) change Parent’s methods of accounting, except as required by concurrent changes in GAAP, as agreed to by its independent public accountants;
(k) settle, or offer or propose to settle, any material litigation, investigation, arbitration, proceeding or other claim involving or against Parent or any of its Subsidiaries, except (i) where the amount paid in settlement or compromise, in each case, does not exceed $10,000 or (ii) arising from ordinary course claims for insurance or reinsurance (but excluding material litigation relating to such claims) that are handled pursuant to Parent’s normal claims handling process consistent with past practice;
(l) (i) make, change or rescind (or file a request to make, change or rescind) any material Tax election, (ii) change any annual tax accounting period, (iii) adopt or change any method of tax accounting (or file a request to make any such change), except as required by applicable Law, (iv) materially amend any Tax Returns, (v) enter into any material closing agreement, (vi) settle or compromise any material Tax claim, audit or assessment, (vii) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability or (viii) consent to any extension or waiver of the statute of limitations applicable to any claim or assessment in respect of Taxes, except, in each case, as required by applicable Law;
(m) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with their terms) any Parent Material Contract or waive, release or assign any material rights, claims or benefits of it or its Subsidiaries under any Parent Material Contract, or enter into any Contract or agreement that would have been a Parent Material Contract had it been entered into prior to this Agreement, except in the ordinary course of business consistent with past practice;
(n) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any Parent Subsidiary (other than the Merger);
(o) granted any license or sublicense to any third party, or otherwise dispose of enter into any Intellectual Property that is used in the conduct ofagreement, with respect to any Parent IPR;
(p) enter into, modify or is otherwise material to, the business of Parent and the Parent Subsidiariesterminate any collective bargaining agreement or other contract with any labor union or other labor organization; or
(pq) agree agree, resolve or commit to take (i) do any of the actions prohibited action restricted by this Section 5.35.2 or (ii) accept any restriction that would prevent Parent or any of its Subsidiaries from taking any action required by this Section 5.2.
Appears in 1 contract
Samples: Merger Agreement (RestorGenex Corp)
Parent Forbearances. During Without limiting the period from the date generality of this Agreement to the Effective TimeSection 5.1 above, except as set forth in Section 5.3 of the Parent Disclosure Schedule (subject to Section 6.1(c)) Letter, and except as required by Law or as expressly contemplated or permitted by this AgreementAgreement or as required by applicable Law, from the date of this Agreement until the Effective Time, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, delayed or conditioned):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and i) other than indebtedness of Parent dividends and distributions by a direct or any of the wholly owned Parent Subsidiaries indirect Subsidiary to Parent or any of the direct or indirect wholly owned Parent Subsidiaries Subsidiary of Parent, declare, set aside or between wholly owned Parent Subsidiaries) pay any dividends on, make any other distributions in excess of $25 million in the aggregaterespect of, or assumeenter into any agreement with respect to the voting of, guarantee, endorse or otherwise as an accommodation become responsible for the obligations any of any other individual, corporation or other entity, or make any loan or advance;
its capital stock; (bii) adjust, split, combine or reclassify any of Parent's 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;
, except upon the exercise of stock options or settlement of stock units or conversion of convertible securities that are outstanding as of the date of this Agreement in accordance with their present terms and except for the Parent Reverse Split; or (ciii) makepurchase, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase redeem or otherwise acquire, acquire any shares of its capital stock or any other securities or obligations convertible any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (whether currently convertible other than the withholding of shares of common stock to satisfy the exercise price or convertible only after Tax withholding upon the passage exercise of time stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the occurrence date of certain eventsthis Agreement in accordance with their present terms and Parent’s practices as of the date of this Agreement);
(b) into issue, deliver, sell, pledge or exchangeable for otherwise encumber or subject to any Lien any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt other voting securities, including any restricted shares of its common stock, or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares shares, voting securities or Parent Voting Debtconvertible securities, except including any stock options and unit awards (other than (i) pursuant to the issuance of its common stock upon the exercise of Parent Stock Options stock options or the satisfaction vesting of any Parent Stock-Based Awardsrestricted shares or conversion of convertible securities, in each case, case that are outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement in accordance with their present terms; or issued thereafter in compliance with this Agreement, (ii) upon the conversion issuance of convertible securities outstanding stock options (but, for the avoidance of doubt, not restricted stock units or any other Parent Stock Awards) prior to or at the Effective Time to certain employees and directors of and consultants to Parent (“Post-Closing Parent Stock Options”), it being understood and agreed that any such Post-Closing Parent Stock Options shall be issued in accordance with and subject to the terms of Parent's 2007 Stock Plan and form award agreement thereunder (as previously made available to the Company) and such total number of Post-Closing Parent Stock Options so granted shall not exceed a number equal to three percent (3%) multiplied by the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent SubsidiaryClosing Capitalization);
(ec) notwithstanding amend its certificate of incorporation or bylaws or the Organizational Documents of any other provision hereofof its Subsidiaries, increaseexcept as contemplated herein or necessary to effect the transactions contemplated herein, decreaseincluding without limitation the filing with the Secretary of State of Delaware of the New Preferred Certificates of Designation and an amendment to Parent’s certificate of incorporation to effect the Parent Reverse Split, change or exchange any Parent Preferred Stock for a different the Name Change and an increase in the authorized number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this AgreementParent Common Stock;
(fd) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets in each case, except for acquisitions of inventory or other assets (other than as required to comply with applicable Law (including Section 409A of the Codeproperty, plant and equipment) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event acquisition otherwise permitted by the foregoing may any such acceleration of vestingbe made to the extent it may reasonably be expected to prevent, lapse of restrictions materially delay or funding be as a result of the execution and delivery of this Agreement or materially impede the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawAgreement;
(ge) sell, assign, transfer, mortgagelease, license, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, or create any security interest in any transaction such assets or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiaryproperties, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholecase, other than in the ordinary course of business consistent with past practice;
(f) except for borrowings under the Parent’s Credit Agreements that are incurred in the ordinary course of business consistent with past practice, or Indebtedness owed by any wholly owned Subsidiary to Parent or any other wholly owned Subsidiary of Parent, incur, redeem, prepay, repurchase, defease, cancel, or modify the terms of, any Indebtedness or assume, guarantee or endorse, or otherwise become responsible for the Indebtedness of any Person (other than any of its wholly owned Subsidiaries);
(g) make any loans or advances to any Person other than its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(h) enter into change in any new line material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date of business that is material to Parent and the Parent Subsidiariesthis Agreement, taken except as a wholerequired by changes in GAAP or regulatory accounting principles;
(i) make investments in Persons (other than in any material acquisition of its wholly owned Subsidiaries or investment either any Related Entity) in excess of $50,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or by purchase of entering into binding agreements with respect to any property such investment or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of businessacquisition;
(j) amend its Certificate make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any material claim or assessment from a Taxing Authority or surrender any right to claim a refund of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) a material amount of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third partiesTaxes;
(k) settle except as expressly permitted by any other provision of this Section 5.3 or as set forth in Section 5.3 of the Parent Disclosure Letter, terminate or waive any material claimprovision of any Parent Material Contract other than normal renewals of such Contracts without materially adverse changes, action additions or proceedingdeletions of terms, except or enter into or renew any agreement or contract or other binding obligation of Parent or its Subsidiaries containing (i) any restriction on the ability of Parent and its Subsidiaries, including, after the Merger, the Company and its Subsidiaries, to conduct their businesses as presently conducted or currently contemplated to be conducted after the Merger or (ii) any restriction on Parent or its Subsidiaries, including, after the Merger, the Company and its Subsidiaries, in engaging in any type of activity or business;
(l) (i) incur any capital expenditures or (ii) enter into any Contract obligating Parent (or any of its Subsidiaries) to make capital expenditures, except for, in each case, capital expenditures not in excess of $50,000 in the aggregate;
(m) except as required by agreements or instruments in effect on the date of this Agreement, alter in any material respect, fail to satisfy or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which Parent directly or indirectly holds any equity or ownership interest on the date of this Agreement;
(n) except as required by the terms of Parent Benefit Plans or Parent Employment Agreements as in effect on the date of this Agreement or as required by applicable Law or as provided by this Agreement (including without limitation the issuance of the Post-Closing Parent Stock Options and the Key Employee Agreement Amendment), or as in the ordinary course of business consistent with past practice, (i) grant or pay to any current or former director, officer, employee or consultant of Parent or any of its Subsidiaries any increase in compensation, except for annual or promotional salary or wage increases in the ordinary course of business consistent with past practice not to exceed, in the aggregate for all such increases, 10% of the aggregate wage and salary expense for the prior year to Parent and its Subsidiaries on a consolidated basis; (ii) grant, pay, promise to pay, or enter into any Parent Benefit Plan or Parent Employment Agreement to pay, to any current or former director, officer, employee, consultant or service provider of Parent or any of its Subsidiaries any severance, retention, change in control or termination pay or any increase in actual or potential severance, retention, change in control or termination pay; (iii) increase the compensation or benefits provided or payable under any Parent Benefit Plan or Parent Employment Agreement; (iv) modify the terms of any equity-based award granted under any Parent Stock Plan; (v) make any discretionary contributions or payments with respect to any Parent Benefit Plan or Parent Employment Agreement to any trust or other funding vehicle; (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of Parent or any of its Subsidiaries or otherwise pay any amounts not due such individual; (vii) enter into any new or amend or modify any existing Parent Employment Agreement (or agreement that would be a Parent Employment Agreement if in effect on the date of this Agreement), other than employment agreements for new hires with an annual compensation not exceeding $50,000 in the aggregate; (viii) establish any new or amend or modify any existing Parent Benefit Plans (or plans that would be a Parent Benefit Plan if in effect on the date of this Agreement); or (ix) establish, adopt or enter into any collective bargaining agreement;
(o) except as set forth in Section 5.3 of the Parent Disclosure Letter, pay, discharge, settle, waive, release or assign or compromise any legal action, litigation, arbitration, suit, investigation or proceeding, other than any such payment, discharge, settlement or compromise (i) that involves solely money damages in an amount not in excess of $50,000 in the aggregate, and that does not create binding precedent for other pending or potential legal action, litigation, arbitration or proceeding, or (ii) settlements pursuant to the extent subject to and not terms of any Contract in excess effect on the date of reserves that relate this Agreement (copies of which have been made available to the matter being settled existing as Company prior to the date of June 30, 2005 in accordance with GAAPthis Agreement);
(lp) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeaction, or agree knowingly fail to take, take any action that within its control, which action or failure to act would reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code or as a contribution governed by Section 351 of the Code;
(oq) except adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries (other than the Merger);
(r) fail to maintain in full force and effect the material insurance policies covering Parent and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(s) enter into any hedging Contracts not in the ordinary course of businessbusiness consistent with past practice;
(t) fail to comply in all material respects with the Securities Act, sellthe Exchange Act or the Xxxxxxxx-Xxxxx Act in respect of all Parent SEC Documents filed with or furnished to, assignas applicable, abandon, license, the SEC;
(u) purchase or otherwise dispose acquire, directly or indirectly (including by way of providing financing), any Intellectual Property that is used Equity Interests in the conduct of, Company or is otherwise material to, any of the business of Parent and the Parent Company's Subsidiaries; or
(pv) commit or agree or commit to take any of the actions prohibited contemplated by this Section 5.35.3(a) through Section 5.3 (u) above.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in Section 6.4 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or expressly permitted by this AgreementAgreement or as required by applicable Law, Parent will shall not, and will shall not permit any of its Subsidiaries (to the Parent Subsidiaries extent applicable below) to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(bi) adjust, split, combine or reclassify any capital stock of Parent's capital stock;; or
(cii) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock Parent Common Stock (except for regular quarterly cash dividends by Parent in the ordinary course of business (i) including being declared, record dated and paid consistent with past practice from a timing perspective at a rate determined in good faith by Parent’s Board of Directors and excluding any special or extraordinary dividends or distributions), and dividends paid by any of the wholly owned Subsidiaries of Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries);
(b) (i) enter into agreements with respect to, or consummate, any merger or business combinations, or any acquisition of any other person or business or (ii) dividends paid onmake loans, advances or capital contributions to, or conversion ofinvestments in, Parent Preferred Stock outstanding any other person, in each case of clauses (i) and (ii), that would reasonably be expected to prevent, impede or materially delay the consummation of the Merger on the date hereof in accordance with the certificate of designation for such Parent Preferred Stocka timely basis, and or (iii) the acceptance adopt or publicly propose a plan of shares of Parent Common Stock as payment complete or partial liquidation or resolutions providing for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Optionsauthorizing such a liquidation or a dissolution, in each case, of Parent;
(c) amend the Parent Certificate or Parent By-laws in accordance with past practice and in accordance with applicable Law and a manner that would adversely affect the terms holders of the applicable award agreements)Company Common Stock (upon their acquisition of Parent Common Stock) relative to other holders of Parent Common Stock;
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would reasonably be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Sections 8.1 or 8.3 not being satisfied, except as may be required by applicable Lawsatisfied on a timely basis; or
(me) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, licensecommitment to take, or otherwise dispose adopt any resolutions of any Intellectual Property that is used its Board of Directors or similar governing body in the conduct support of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(p) agree or commit to take any of the actions prohibited by this Section 5.36.4.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments Parent Articles or the Parent Bylaws in a manner that would materially and adversely affect the holders of capital stock of Company, or adversely affect the holders of capital stock of Company relative to other than indebtedness holders of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCommon Stock;
(b) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person individual, corporation or other entity other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent wholly owned Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent or in a transaction that, together with past practice)such other transactions, is not reasonably likely to cause the Closing to be materially delayed or the receipt of the Requisite Regulatory Approvals to be prevented or materially delayed;
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(id) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Personindividual, corporation or make any capital expendituresother entity, in each case other than (i) investments in a wholly owned Subsidiaries or (ii) acquisitions Subsidiary of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingParent, except (i) for transactions in the ordinary course of business or (ii) settlements in a transaction that, together with such other transactions, is not reasonably likely to cause the extent subject Closing to and not in excess be materially delayed or the receipt of reserves that relate the Requisite Regulatory Approvals to the matter being settled existing as of June 30, 2005 in accordance with GAAPbe prevented or materially delayed;
(le) merge or consolidate Parent or any of its Significant Subsidiaries with any other person where Parent or its Significant Subsidiary, as applicable, is not the surviving person, or restructure, reorganize or completely or partially liquidate or dissolve Parent or Parent Bank;
(f) take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that would where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(og) except take any knowing or willful action that is intended or may reasonably be expected to result in any of Parent’s representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the ordinary course Effective Time, any of businessthe conditions to the Merger set forth in Section 7.1 or Section 7.3 not being satisfied, sell, assign, abandon, license, or otherwise dispose the satisfaction of any Intellectual Property that is used such conditions being materially delayed or in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiariesa Requisite Regulatory Approval not being obtained; or
(ph) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or the rules and regulations of the SEC or NASDAQ or as expressly contemplated or permitted by this AgreementAgreement (including with respect to the Qualified Offering), Parent will not, and will not permit any of the Parent Subsidiaries to, without the prior written consent of the Company:VTBH (which shall not be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money amend its Organizational Documents (except for indebtedness contemplated whether by the Financing Commitments and other than indebtedness of Parent merger, consolidation or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceotherwise);
(b) adjust, (i) split, combine or reclassify any of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock stock, or propose to split, combine or reclassify, any of its share capital, or issue or authorize or propose the issuance or authorization of any other securities in respect of, or obligations convertible (whether currently convertible in lieu of or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any in substitution for, shares of its share capital, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (stock, except (i) dividends paid by any of the a direct or indirect wholly owned Subsidiary of Parent Subsidiaries to Parent or to any of its Parent’s other direct or indirect wholly owned Subsidiaries, Subsidiaries (iito the extent that any such dividends do not result in any Subsidiary of Parent breaching or otherwise violating any applicable regulatory capital requirements or becoming subject to any additional regulatory oversight or reporting requirements) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of Parent Common Stock as payment for the exercise price Parent’s (or any of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(dits Subsidiaries’) issue any additional shares of share capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, exercisable for any shares of Parent’s (or any warrants of its Subsidiaries’) share capital, other than repurchases, redemptions or options to acquireacquisitions by Parent or any wholly owned Subsidiary of Parent of share capital or such other securities, as the case may be, of any such shares or Parent Voting Debt, except other wholly owned Subsidiary of Parent;
(c) (i) pursuant to issue, deliver, pledge or sell, or authorize the issuance, delivery or sale of, any Parent Stock, Equity Equivalents or shares of capital stock of any Parent Subsidiary, other than the issuance of (A) any Parent Stock upon the exercise of Parent Stock Options or Parent Warrants that are outstanding on the satisfaction date of any Parent Stock-Based Awards, in each case, outstanding and this Agreement in accordance with the terms and conditions in effect as of the date of this Agreement Parent Stock Plans or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of Parent Warrants on the date of this Agreement, (B) any capital stock of any Parent Subsidiary to Parent or any other Parent Subsidiary, (C) a number of Parent Stock Options to purchase not in excess of 200,000 shares of Parent Common Stock and (C) Parent Stock or Parent Warrants pursuant to a Qualified Offering or (iiiii) amend any term of any Parent Stock or Equity Equivalent (in each case, whether by merger, consolidation or otherwise);
(d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for issuances (i) those contemplated by a wholly owned the capital expenditure budget set forth in Section 5.2(d) of the Parent Subsidiary of Disclosure Schedule and (ii) any unbudgeted capital stock expenditures not to such Subsidiary's parent exceed $500,000 individually or another wholly owned Parent Subsidiary$1,000,000 in the aggregate;
(e) notwithstanding acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any other provision hereofassets, increasesecurities, decreaseproperties, change interests or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganizationbusinesses, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) supplies, equipment, inventory or other than assets in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, practice and/or (ii) acquisitions with a purchase price net of the total of assumed liabilities (including all operating liabilities, reserves and indebtedness) that does not exceed $1,000,000 individually or $2,000,000 in the aggregate;
(f) sell, lease, sublease, exchange or otherwise transfer, or create or incur any Lien, other than a Permitted Lien, on, any of Parent’s or any of its Subsidiaries’ assets, securities, properties, interests or businesses, or grant or increase any severance, change of control, termination or similar compensation or benefits payable option with respect to any current or former directorof the foregoing, officer or employee, other than (iiii) except sales of inventory in the ordinary course of business and consistent with past practice pay any bonusand/or (ii) other sales of assets, securities, properties, interests or businesses with a sale price or carrying value net of the total of assumed liabilities (ivincluding all operating liabilities, reserves and indebtedness) adopt, enter into, terminate that does not exceed $1,000,000 individually or amend $2,000,000 in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, the aggregate;
(vg) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment actions permitted by Section 5.2(d) or election of new directors Section 5.2(e), make any loans, advances or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect capital contributions to, or fund or otherwise secure the payment ofinvestments in, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholePerson, other than in the ordinary course of business consistent with past practice)practice or loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of Parent;
(h) enter into create, incur, assume, suffer to exist or otherwise be liable with respect to any new line indebtedness for borrowed money or guarantees thereof (including reimbursement obligations with respect to letters of credit), other than (i) in replacement of existing or maturing debt, and (ii) draw downs pursuant to existing credit facilities and letters of credit in support of Parent’s and its Subsidiaries’ business that is material to Parent and the Parent Subsidiaries, taken as a wholeconsistent with past practice;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned with respect to any director, officer or employee of Parent or any of its Subsidiaries whose annual base salary exceeds $100,000, (A) grant or increase any severance or termination pay to (or amend any existing severance pay or termination arrangement) or (B) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement), (ii) acquisitions increase benefits payable under any existing severance or termination pay policies, (iii) establish, adopt or amend any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement; provided, that Parent may, to the extent appropriate, adjust the performance goals for, or convert, all Parent Stock Options that vest upon the achievement of assets used performance criteria in the operations manner agreed to by VTBH and Parent within 15 Business Days following the date hereof (or such later time as may be agreed to by the parties) to appropriately reflect the Merger with respect to performance periods that will not have ended prior to the Effective Time, or (iv) increase compensation, bonus or other benefits payable to any employee of Parent and or any of its Subsidiaries, except, with respect to any director, officer or employee of Parent or any of its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documentswhose annual base salary does not exceed $100,000, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) for increases in the ordinary course of business consistent with past practice;
(j) change Parent’s methods of accounting in any material respect, except as required by concurrent changes in GAAP, as agreed to by its independent public accountants;
(k) settle, or offer or propose to settle, any material litigation, investigation, arbitration, proceeding or other claim involving or against Parent or any of its Subsidiaries, except (i) where the amount paid in settlement or compromise, in each case, does not exceed $1,000,000, or (ii) settlements arising from ordinary course claims for insurance or reinsurance (but excluding material litigation relating to the extent subject such claims) that are handled pursuant to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance Parent’s normal claims handling process consistent with GAAPpast practice;
(l) take (i) make, change or rescind (or file a request to make, change or rescind) any action that is intended material Tax election, (ii) change any annual tax accounting period, (iii) adopt or would be reasonably likely change any method of tax accounting (or file a request to result make any such change), (iv) materially amend any Tax Returns, (v) enter into any material closing agreement, (vi) settle or compromise any material Tax claim, audit or assessment, (vii) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability or (viii) consent to any extension or waiver of the conditions statute of limitations applicable to the Merger set forth any claim or assessment in Article VII not being satisfiedrespect of Taxes, except except, in each case, as may be required by applicable Law; or;
(m) implement amend or adopt modify in any material change respect or terminate (excluding terminations upon expiration of the term thereof in accordance with their terms) any Parent Material Contract or waive, release or assign any material rights, claims or benefits of it or its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeSubsidiaries under any Parent Material Contract, or agree to take, enter into any action Contract or agreement that would prevent the Merger from qualifying as have been a "reorganization" within the meaning of Section 368(a) of the Code;
(o) Parent Material Contract had it been entered into prior to this Agreement, except in the ordinary course of businessbusiness consistent with past practice;
(n) adopt a plan of complete or partial liquidation, selldissolution, assignmerger, abandonconsolidation, licenserestructuring, recapitalization or other reorganization of Parent or any Parent Subsidiary (other than the Merger);
(o) grant any license or sublicense to any third party, or otherwise dispose enter into any agreement, with respect to any Parent IPR;
(p) retain any investment banker, broker or finder relating to the Qualified Offering without the prior written consent of VTBH, except for any Intellectual Property retention pursuant to which compensation shall be paid by Parent or its Subsidiaries only upon the consummation of the Qualified Offering from the proceeds thereof (and that is used in has no continuing obligations following the conduct of, or is otherwise material to, the business termination of Parent and the Parent Subsidiariessuch retention); or
(pq) agree agree, resolve or commit to take (i) do any of the actions prohibited action restricted by this Section 5.35.2 or (ii) accept any restriction that would prevent Parent or any of its Subsidiaries from taking any action required by this Agreement.
Appears in 1 contract
Parent Forbearances. During Subject to applicable Law, during the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law previously disclosed or as expressly contemplated or permitted by this Agreement, the Parent will shall not, and will shall not permit any of the Parent Subsidiaries its subsidiaries to, directly or indirectly, without the prior written consent of the Company:Partnerships (which prior written consent shall not be unreasonably delayed, conditioned or withheld):
(a) incur any indebtedness for borrowed money (except for indebtedness Except as contemplated by Section 1.4 of this Agreement, issue, deliver, sell, grant or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize the Financing Commitments and creation of, or amend the terms of (i) any shares of its capital stock or other than indebtedness of Parent voting securities, (ii) any securities convertible into or exercisable or exchangeable for, or any of the wholly owned Parent Subsidiaries other rights to Parent or acquire, any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation such shares or other entitysecurities or (iii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or make any loan or advance;stock-based performance units.
(b) (i) Make, declare, pay or set aside or establish a record date for payment of any dividend on or in respect of, or declare or make any distribution on, any shares of its capital stock or the capital stock of any of its subsidiaries, whether in cash, stock or property or any combination thereof, dividends payable by any directly or indirectly wholly owned subsidiary of the Parent to the Parent or another directly or indirectly wholly owned subsidiary of the Parent, (ii) except as contemplated by this Agreement, adjust, split, combine combine, reclassify or reclassify take similar action with respect to any of Parent's 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;
(c) make, declare or pay any dividend, or make any other distribution on(iii) purchase, or directly or indirectly redeem, purchase redeem or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt subsidiaries or any other securities convertible into or exchangeable for, thereof or any rights, warrants or options to acquire, acquire any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible other securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of or discontinue any of its assets, deposits, business or properties, except for sales, transfers, leases, mortgages, encumbrances or other dispositions or discontinuances (i) as set forth in Section 4.3(c) of the Parent Disclosure Schedule or (ii) other such transactions in the Ordinary Course of Business, in material compliance with applicable Laws and in an aggregate amount not to exceed $10,000.
(d) Acquire or agree to acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case, in the Ordinary Course of Business consistent with past practice) all or any portion of the assets, business, deposits or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments.
(e) Except as contemplated with respect to an amendment to the Parent’s Organizational Documents to effect a 1-for-2 reverse stock split of the Parent Common Stock, amend the Parent’s Organizational Documents or other governing documents or similar governing documents of any of its subsidiaries or amend the Reincorporation Merger Agreement.
(f) Implement or adopt any change in its Tax or financial accounting principles, practices or methods, other than as required to comply with by applicable Law, GAAP or applicable regulatory requirements.
(g) Except as required under applicable Law (including Section 409A or the terms of the Code) or a any Parent Benefit Plan existing as in effect on of the date hereof or collective bargaining as is set forth in Section 4.3(g) of the Parent Disclosure Schedule or similar labor union or other agreement the existence of which does not breach as provided for by this Agreement, (i) other than increase in any manner the ordinary course compensation or benefits (including, without limitation, any increase in severance, change of business consistent with past practicecontrol or termination pay) of any of the current, increase former or newly hired Employees of the wages, salaries, compensation, bonus, pension Parent or other benefits or perquisites payable to any current or former director, officer or employeeits subsidiaries, (ii) grant pay any amounts to Employees of the Parent or its subsidiaries or increase any severance, change amounts or rights of control, termination or similar compensation or benefits payable to any such Employees not required by any current plan, program or former director, officer or employeeagreement unless in connection with ordinary course payroll and expense reimbursement policies and procedures as in effect as of the date hereof, (iii) except in become a party to, establish, amend, commence participation in, terminate or commit itself to the ordinary course adoption of business and consistent any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with past practice pay or for the benefit of any bonusEmployee (or newly hired Employees) of the Parent or its subsidiaries, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than as provided for in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of businessthis Agreement, or (vi) accelerate the time vesting of payment or vesting of, or the lapsing of restrictions with respect toto any stock-based compensation or other long-term incentive compensation under any Parent Benefit Plans, (v) cause the funding of any rabbi trust or similar arrangement or take any action to fund or otherwise in any other way secure the payment of, any of compensation or benefits under any Parent Benefit Plan; provided, howeveror (vi) enter into any employment, that consulting, indemnification, severance or termination Contract with any Employee (other than immaterial at will employment arrangements).
(i) Incur any indebtedness for borrowed money (including obligations in no event may respect of capital leases), or guarantee any such acceleration indebtedness of vestinganother Person, lapse issue or sell any debt securities or warrants or other rights to acquire any of restrictions its debt securities or funding be as a result the debt securities of any subsidiary, guarantee any debt of its subsidiaries, 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 execution and delivery foregoing, or (ii) except pursuant to previously disclosed commitments existing as of the date of this Agreement or the consummation that are set forth on Section 4.3(h) of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sellParent Disclosure Schedule, transfermake any loans, mortgageadvances or capital contributions to, encumber or otherwise dispose of investments in, any of its properties or assets that are material to Parent and the Parent Subsidiariesother Person, taken as a whole, in any transaction or series of transactions, to any Person other than Parent to or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by in the Parent or any direct or indirect wholly owned and subsidiary of the Parent Subsidiary, in each case that is material to Parent and set forth on Section 4.3(h) of the Parent Subsidiaries, taken as a whole, Disclosure Schedule.
(i) Make or agree to make any new capital expenditure or expenditures.
(j) File or amend any Tax Return other than in the Ordinary Course of Business; make, change or revoke any Tax election; or settle or compromise any material Tax liability or refund.
(k) Enter into any new line of business.
(l) Terminate, enter into, amend, modify or renew any Contract.
(m) Settle any Proceeding against it except for a Proceeding that (i) is settled in the Ordinary Course of Business consistent with past practice in an amount or for consideration not in excess of $10,000 in the aggregate, (ii) would not impose any material restriction on the conduct of business of it or any of its subsidiaries, (iii) would not create precedent for Proceedings that are reasonably likely to be material to it or any of its subsidiaries and (iv) would not admit fault, liability or guilt.
(n) (i) Pay, discharge or satisfy any indebtedness for borrowed money, other than the payment, discharge or satisfaction, required pursuant to the terms of Parent Outstanding Debt as in effect as of the date of this Agreement, (ii) cancel any material indebtedness (individually or in the aggregate) or waive or amend any claims or rights of substantial value (other than in accordance with ordinary course restructurings of business portfolio companies) or (iii) waive material benefits of, or agree to modify in any material manner, any confidentiality (other than in the Ordinary Course of Business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws standstill or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action agreement to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), which it or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that subsidiaries is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;party.
(o) except in Except for the ordinary course of businessReincorporation Merger, sell, assign, abandon, license, merge or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and consolidate the Parent Subsidiaries; oror any of its subsidiaries with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Parent or any of its subsidiaries.
(p) agree Agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of directors in support of, any of the actions prohibited by this Section 5.34.3.
Appears in 1 contract
Parent Forbearances. During Except (i) as set forth in Section 6.3 of the Parent Disclosure Letter, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable law, rule or regulation, or by any Governmental Entity, (iv) as required by a Parent Benefit Plan or any agreement in effect on the date hereof of which the Company has been notified and provided a true and correct copy prior to the date of this Agreement, and (v) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(bi) adjust, split, combine or reclassify any of Parent's its capital stock;
, (cii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend, dividend or make any other distribution onon any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or except that any wholly owned Subsidiary of the Parent may declare and pay dividends to its parent and other wholly owned Subsidiaries of the Parent, (iii) directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any pursuant to the Parent Stock Buyback Program, the exercise or vesting of the wholly owned Parent Subsidiaries to Parent or to any Equity Awards outstanding as of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with or pursuant to the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance surrender of shares to the Parent or the withholding of shares by the Parent to cover tax withholding obligations or to pay any applicable exercise price under the Parent Common Stock as payment for Plans), or (iv) grant any stock appreciation rights or grant any Person any right to acquire any shares of its capital stock, or issue, or commit to issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale grant, disposition, pledge or other encumbrance of, any additional shares of capital stock (except pursuant to the exercise price or vesting or settlement of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms Equity Awards outstanding as of the applicable award agreementsdate hereof);
(d) issue , any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any additional shares of capital stock, any Parent Voting Debt or any other securities convertible into in respect of, in lieu of, or exchangeable in substitution for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of its capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect outstanding on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(gb) sell, transfer, mortgage, encumber or otherwise dispose of any of its material assets or material properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person (other than Parent a direct wholly owned Subsidiary), by merger, consolidation, asset sale or other business combination (including formation of a Parent Subsidiary joint venture) or cancel, release or assign any indebtedness to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiarysuch Person, in each case, except (i) in the ordinary course of business consistent with past practice, including sales of repossessed assets, (ii) dispositions of obsolete or worthless assets, (iii) sales of loans, receivables and other assets in the ordinary course of business consistent with past practice and (iv) sales of immaterial assets which involve the sale of assets with a purchase price of $250,000 or less in any single case or $250,000 in all such cases;
(c) make any investment or acquisition, by purchase or other acquisition of stock or other equity interests, by merger, consolidation, asset purchase or other business combination, or by contributions to capital; or make any material purchases of any property or assets, in or from any other Person other than a wholly owned Subsidiary of the Parent, except (i) as otherwise permitted by this Section 6.3 and (ii) other acquisitions in the ordinary course of business and, in any case, involving consideration in an aggregate amount not in excess of $250,000;
(d) enter into, renew, extend, amend or terminate any contract, lease or agreement that is material or would be a Parent Contract;
(e) other than general pay increases, including in connection with promotions, made in the ordinary course of business consistent with past practice, for employees, directors or independent contractors generally or as provided by any agreement in effect on the date hereof (true and correct copies of which have been delivered to the Company prior to the date of this Agreement), (i) increase, or commit to increase, the compensation or severance payable (including by granting or increasing the rate or terms of any salary, bonus, pension or other compensation except pursuant to the terms of any Parent and the Parent SubsidiariesBenefit Plan), taken as a whole, (ii) pay any severance other than in the ordinary course of business consistent with past practice)practice or (iii) except as may be required, or advisable, to comply with applicable law or contract, amend, establish or enter into any pension, retirement, profit-sharing, severance, retention or welfare benefit plan or agreement or incentive or employment, agreement with or for the benefit of any employee, director or independent contractor or accelerate the vesting of any stock options or other stock-based compensation;
(f) amend its Certificate of Incorporation, bylaws or similar governing documents or similar organizational documents of any of Subsidiary of the Parent;
(g) enter into any new material line of business outside of its existing business;
(h) enter into assign, transfer, lease, cancel, fail to renew or fail to extend any new line of business that is material to Parent and the Parent Subsidiaries, taken as a wholePermit issued by any Governmental Entity or any State Regulator;
(i) make incur any material acquisition indebtedness for borrowed money, issue any debt securities or investment either by purchase assume, guarantee or endorse or otherwise become responsible for the obligations of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other another Person, or make any loans, advances of capital expenditurescontributions to, or investments in, any other Person, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingcase, except (i) in the ordinary course of business consistent with past practice;
(j) make or change any material Tax election or settle or compromise any material Tax liability of the Parent or any of its Subsidiaries;
(iik) settlements to the extent subject to and not make any material changes in excess its accounting methods or method of reserves that relate to the matter being settled existing Tax accounting, practices or policies, except as of June 30may be required under applicable law, 2005 in accordance with rule, regulation or GAAP;
(l) effect or permit, with respect to the Parent and any Subsidiary of the Company, a “plant closing” or “mass layoff”, as such terms are defined under the Worker Adjustment and Retraining Act of 1988, as amended;
(m) account for, manage or treat accounts receivable (including accelerating the collection thereof) or accounts payable (including delaying the payment thereof) in any manner other than in the in the ordinary course of business consistent with past practice;
(n) except as permitted by this Agreement, take any action that is intended or would reasonably be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Section 8.1 or 8.3 not being satisfied, except as may be required by applicable Law; or
(mo) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeagree to, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material commitment to, the business of Parent and the Parent Subsidiaries; or
(p) agree take or commit to take announce any of the actions prohibited by this Section 5.36.3.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments Parent Articles or the Parent Bylaws in a manner that would materially and adversely affect economic benefits of the Merger to the holders of Company Common Stock, or adversely affect the holders of Company Common Stock relative to other than indebtedness holders of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCommon Stock;
(b) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Personindividual, corporation or make any capital expendituresother entity, in each case other than (i) investments in a wholly owned Subsidiaries or (ii) acquisitions Subsidiary of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingParent, except (i) for transactions in the ordinary course of business or in a transaction that, together with such other transactions, is not reasonably likely to prevent, materially impede or materially delay the ability of Parent, the Company or their respective Subsidiaries to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the Merger (iiincluding the Requisite Regulatory Approvals) settlements or to consummate the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAPtransactions contemplated hereby;
(ld) merge or consolidate itself or any of its material Subsidiaries with any other person where it or its material Subsidiary, as applicable, is not the surviving person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its material Subsidiaries, in any such case where such action is reasonably likely to prevent, materially impede or materially delay the ability of Parent, the Company or their respective Subsidiaries to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the Merger (including the Requisite Regulatory Approvals) or to consummate the transactions contemplated hereby;
(e) take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that would where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(pf) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective Time, except Except as set forth in Section 5.02 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, neither Parent will notnor Merger Sub shall, and will not nor shall Parent permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (which consent the Company shall use its reasonable best efforts to provide or withhold within five Business Days of Parent’s request therefor, and which consent otherwise shall not be unreasonably withheld, delayed or conditioned):
(a) incur amend, repeal or otherwise modify any indebtedness for borrowed money (except for indebtedness provision of the Parent Certificate or the Parent Bylaws in a manner that would adversely affect Company, the stockholders of Company or the transactions contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advancethis Agreement;
(b) adjust, split, combine or reclassify any of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquireacquire (except for the acceptance or withholding of shares of Parent Common Stock in payment of the exercise price or withholding Taxes incurred by any employee or director in connection with the exercise of options to acquire Parent Common Stock or stock appreciation rights or the vesting of restricted shares or settlement of other equity-based awards in respect of Parent Common Stock granted under a benefit plan maintained by Parent, in each case as in effect on the date hereof), any shares of its capital stock stock, voting securities, other equity interests or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock stock, voting securities or other equity interests (except (i) dividends paid by any of the wholly owned subsidiary to its parent or as required under the indenture applicable to the issued and outstanding 5.25% Convertible Senior Notes of Parent);
(c) grant any person any right to acquire shares of its capital stock, voting securities or other equity interests except for the issuance of stock options to acquire Parent Subsidiaries Common Stock to employees or directors of Parent or to any its Subsidiaries in the ordinary course of its wholly owned Subsidiaries, (ii) dividends paid onbusiness, or conversion ofthe taking of any action to effect the exercise, Parent Preferred Stock outstanding on the date hereof cash-out or settlement of any restricted stock unit, stock option or performance share or other equity or equity-based award (other than in accordance connection with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares an issuance of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreementspermitted by Section 5.02(d)(i));
(d) issue any additional shares of capital stockstock or other equity securities or other equity or equity-based awards, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debtincluding cash-settled awards, except (i) pursuant to the exercise issuance of capital stock or other securities not in excess of 15% of the outstanding shares of Parent Common Stock Options in an underwritten transaction or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreementotherwise on arms’ length terms, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding under any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassificationincentive compensation, stock dividendpurchase, stock splitbonus, reverse restricted stock, stock split option or other similar change in capitalizationequity-based plan, in each case other than program or arrangement of Parent as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any (iii) issuances under the indenture applicable to the issued and outstanding 5.25% Convertible Senior Notes of Parent S-K 404 Arrangement, other than and (iv) issuances of Parent Common Stock to the holders of the Company Common Stock and Adjusted Options to holders of Company Options in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawMerger;
(ge) sell, transfer, mortgage, encumber take or otherwise dispose of any of its properties or assets that are material omit to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would reasonably be reasonably likely expected, individually or in the aggregate, to result in any of the conditions to the Merger set forth in Article VII Sections 7.01 and 7.03 not being satisfied, except as may be required by applicable Lawsatisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; or
(mf) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning commitment to take, authorize or adopt any resolutions of Section 368(a) its board of the Code;
(o) except directors in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct support of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(p) agree or commit to take any of the actions prohibited by this Section 5.35.02.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by amend the Financing Commitments Parent Articles or the Parent Bylaws in a manner that would materially and adversely affect economic benefits of the Merger to the holders of Company Common Stock, or adversely affect the holders of Company Common Stock relative to other than indebtedness holders of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceCommon Stock;
(b) adjust, split, combine or reclassify any capital stock of Parent's capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Personindividual, corporation or make any capital expendituresother entity, in each case other than (i) investments in a wholly owned Subsidiaries or (ii) acquisitions Subsidiary of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceedingParent, except (i) for transactions in the ordinary course of business or in a transaction that, together with such other transactions, is not reasonably likely to prevent, materially impede or materially delay the ability of Parent, the Company or their respective Subsidiaries to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the Merger (iiincluding the Requisite Regulatory Approvals) settlements or to consummate the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAPtransactions contemplated hereby;
(ld) merge or consolidate itself or any of its material Subsidiaries with any other person where it or its material Subsidiary, as applicable, is not the surviving person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its material Subsidiaries, in any such case where such action is reasonably likely to prevent, materially impede or materially delay the ability of Parent, the Company or their respective Subsidiaries to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the Merger (including the Requisite Regulatory Approvals) or to consummate the transactions contemplated hereby;
(e) take any action that is intended or would be reasonably likely knowingly fail to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, take any action that would where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(pf) agree to take, make any commitment to take, or commit to take adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
Appears in 1 contract
Parent Forbearances. During the period from the date of this Agreement to the earlier of the Effective TimeTime or the termination of this Agreement pursuant to ARTICLE IX, except as set forth in Section 7.2 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will not, and will not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries pursuant to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregateits existing revolving credit facility), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceadvance (other than employee advances made in the Ordinary Course of Business);
(b) adjust, split, combine or reclassify any of Parent's its capital stock;
(c) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Subsidiaries of Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) grant any right to acquire any shares of its capital stock or any stock appreciation right, other than (i) grants in connection with regular stock option grants or other stock-based awards under a Parent Stock Plan by Parent to its or its Subsidiaries' non-executive employees, grants to newly-hired non-executive employees of Parent and its Subsidiaries or grants in connection with promotions of non-executive employees of Parent and its Subsidiaries, in each case consistent with past practice, and (ii) pursuant to employment agreements with Parent as in effect on the date hereof;
(e) issue any additional shares of capital stock, any Parent Voting Debt stock or any securities convertible into or exchangeable for, or any warrants or options to acquireacquire (except as permitted by this Section 7.2(e)), any such shares or Parent Voting Debtshares, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned of Parent Subsidiary Common Stock to non-employee members of capital stock to such SubsidiaryParent's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Board of Directors under Parent's Key Employee Non-Qualified Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this AgreementOption Plan;
(f) other than in the Ordinary Course of Business or as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of in control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, other than the entry into of employment agreements with newly hired non-executive employees, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, however that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(g) sell, transfer, license, lease, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent its Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary Person, or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiaryof its Subsidiaries, in each case that is material to Parent and the Parent its Subsidiaries, taken as a whole, other than (i) in the ordinary course Ordinary Course of business consistent with past practice)Business or (ii) Liens pursuant to its bank credit facilities;
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a wholebusiness;
(i) make any material acquisition or investment either by purchase of stock or securities, mergers, consolidation, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or Subsidiaries, (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course Ordinary Course of businessBusiness, or (iii) acquisitions or investments not in excess of the amounts set forth in Section 7.2(i) of the Parent Disclosure Schedule;
(j) amend its Certificate articles of Incorporation incorporation or Bylaws by-laws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course Ordinary Course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAPBusiness;
(l) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII ARTICLE VIII not being satisfied, except as may be required by applicable Law; or;
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeamend in any material respect or waive any of its material rights under any Parent Material Contract, terminate or agree fail to take, renew any action Parent Material Contract or enter into any contract or binding agreement that would prevent the Merger from qualifying as be a "reorganization" within the meaning of Section 368(a) of the CodeParent Material Contract;
(o) except in adopt a plan or agreement of complete or partial liquidation, dissolution, winding up, merger, consolidation, amalgamation, restructuring, recapitalization or other material reorganization (other than a merger or consolidation between wholly owned Subsidiaries);
(p) write down the ordinary course value of business, sell, assign, abandon, license, any inventory or otherwise write-off as uncollectible any notes or accounts receivable;
(q) dispose of or permit to lapse any rights to any Intellectual Property that owned or licensed by Parent or any of its Subsidiaries which is used in the conduct of, or is otherwise material to, the business of to Parent and the Parent its Subsidiaries; or, taken as a whole;
(pr) permit any insurance policy naming Parent or any of its Subsidiaries as beneficiary to be cancelled or terminated;
(s) agree or commit to take any of the actions prohibited by this Section 5.37.2; or
(t) take any action reasonably likely to result in the Merger not being treated as a tax-free reorganization pursuant to Code ss.354.
Appears in 1 contract
Parent Forbearances. During Except (i) as set forth in Section 6.3 of the Parent Disclosure Schedule, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable law, rule or regulation, or by any Governmental Entity, (iv) as required by a Parent Benefit Plan or any agreement in effect on the date hereof of which the Company has been notified and provided a true and correct copy prior to the date of this Agreement, and (v) with the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(bi) adjust, split, combine or reclassify its capital stock (unless the Exchange Ratio and/or Merger Consideration is adjusted to take into account such adjustment, split, combination or reclassification), (ii) set any record or payment dates for the payment of Parent's any dividends or distributions on its capital stock;
(c) stock or make, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, on any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, except for (x) Parent’s regular quarterly cash dividends and (y) any wholly owned Subsidiary of the Parent may declare and pay dividends to its parent and other wholly owned Subsidiaries of the Parent, (iii) engage in any material repurchase of, or any recapitalization or other change, restructuring or reorganization with respect to, Parent Stock, or (iv) grant any stock appreciation rights or grant any Person any right to acquire any shares of its capital stock except in the ordinary course of business, or issue, or commit to issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale grant, disposition, pledge or other encumbrance of, any additional shares of capital stock (except (i) dividends paid by any pursuant to the exercise of stock options or vesting or settlement of awards under the wholly owned Parent Subsidiaries to Parent or to any Stock Plans outstanding as of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stockor permitted to be issued under this Section 6.3), and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options any securities convertible into or for withholding taxes incurred in connection with the exercise of Parent Stock Optionsexercisable for, in each caseor any rights, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue warrants or options to acquire, any additional shares of capital stock, any Parent Voting Debt or any other securities convertible into in respect of, in lieu of, or exchangeable in substitution for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except (i) pursuant to the exercise of Parent Stock Options or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of its capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect outstanding on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(gb) sell, transfer, mortgage, encumber or otherwise dispose of any of its material assets or material properties to any Person (other than a direct wholly owned Subsidiary), by merger, consolidation, asset sale or other business combination (including formation of a joint venture) except (i) in the ordinary course of business, including sales of repossessed assets, (ii) dispositions of obsolete or worthless assets, (iii) sales of loans, receivables and other assets that are material to in the ordinary course of business and (iv) sales of immaterial assets which involve the sale of assets with a purchase price of $1,000,000 or less in any single case or $5,000,000 in all such cases;
(c) (i) alter through merger, liquidation, reorganization, restructuring or in any other manner the corporate structure or organization of Parent and the Parent Subsidiaries, taken as a whole, or (ii) engage in any action or enter into any transaction or series of transactions, or permit any action to be taken or transaction or series of transactions to be entered into, that, in the case of either clause (i) or clause (ii), could reasonably be expected to delay the consummation of, or otherwise adversely affect, the Merger or any of the other Transactions, including withdrawing or modifying, in a manner adverse to the Company, the approval by the Parent Board of this Agreement, the Merger or the issuance of Parent Stock;
(d) make any investment or acquisition, by purchase or other acquisition of stock or other equity interests, by merger, consolidation, asset purchase or other business combination, or by contributions to capital; or make any material purchases of any property or assets, in or from any other Person other than Parent or a Parent wholly owned Subsidiary or cancelof the Parent, release or assign to any such Person any indebtedness or any claims held except (i) as otherwise permitted by Parent or any Parent Subsidiary, in each case that is material to Parent this Section 6.3 and the Parent Subsidiaries, taken as a whole, (ii) other than acquisitions in the ordinary course of business consistent with past practice)and, in any case, involving consideration in an aggregate amount not in excess of $10,000,000;
(he) enter into adopt any new line of business that is material amendments to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws of Parent (or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions documents of any confidentiality of Subsidiary of Parent) which would alter any of the terms of Parent Stock or standstill agreements in place with create any third partiesseries or class of capital stock that is senior to Parent Stock;
(kf) settle incur any material claimindebtedness for borrowed money, action issue any debt securities or proceedingassume, guarantee or endorse or otherwise become responsible for the obligations of another Person, in each case, except (i) in the ordinary course of business consistent with past practice or (ii) settlements in connection with the Debt Financing or any Alternative Financing and the use of Parent’s revolving credit facility to consummate the Merger and the transactions contemplated hereby;
(g) incur any secured indebtedness to the extent subject to and not in excess that the liens securing such indebtedness would be permitted solely by Section 6.02(xvii) of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAPParent Credit Agreement;
(lh) except as permitted by this Agreement, take any action that is intended or would reasonably be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Section 8.1 or 8.3 not being satisfied, except as may be required by applicable Law; or
(mi) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeagree to, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material commitment to, the business of Parent and the Parent Subsidiaries; or
(p) agree take or commit to take announce any of the actions prohibited by this Section 5.36.3.
Appears in 1 contract
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.)
Parent Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement or the Parent Option Agreement, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Subject Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(b) adjust, split, combine or reclassify any of Parent's its capital stock;
(c) stock or make, declare declare, or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations obligations, convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) for regular quarterly cash dividends on the Parent Common Stock at a rate not in excess of such rate as Parent from time to time adopts as its regular quarterly dividend rate, ordinary quarterly or semiannual cash dividends on the Parent Preferred Stock at the rates set forth in the Parent Articles of Organization and except for dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries or any of their wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(db) issue take any additional shares of capital stock, any Parent Voting Debt action that would prevent or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, except impede the Merger from qualifying (i) pursuant to the exercise for pooling of Parent Stock Options interests accounting treatment or the satisfaction of any Parent Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result reorganization within the meaning of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A 368 of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration nothing contained herein shall limit the ability of vesting, lapse of restrictions or funding be as a result of Parent to exercise its rights under the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawSubject Company Option Agreement;
(g) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice);
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(lc) take any action that is intended or would may reasonably be reasonably likely expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to of the Merger set forth in Article VII of this Agreement not being satisfied, satisfied or in a violation of any provision of this Agreement;
(d) take any action that would materially adversely affect or materially delay its ability to obtain any necessary approvals of any Regulatory Agency or other governmental authority required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or the Parent Option Agreement;
(e) amend its Articles of Organization except as may be required by applicable Lawwith respect to the establishment of one or more series of preferred stock or to increase its capital stock to up to 400,000,000 shares of Parent Common Stock and change the par value of the Parent Common Stock; or
(mf) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeagree to, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material commitment to, the business of Parent and the Parent Subsidiaries; or
(p) agree or commit to take any of the actions prohibited by this Section 5.3.
Appears in 1 contract
Samples: Merger Agreement (Baybanks Inc)
Parent Forbearances. During the period from the date of this Agreement to the First Effective Time, except as set forth in Section 5.3 of the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or the rules and regulations of the SEC or Nasdaq or as expressly contemplated or permitted by this Agreement, Parent will not, and will not permit any of the Parent Subsidiaries to, without the prior written consent of the Company:Stockholder Representative (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) incur amend in any indebtedness for borrowed money material respect its certificate of incorporation, bylaws or comparable organizational documents (except for indebtedness contemplated whether by the Financing Commitments and other than indebtedness of Parent merger, consolidation or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advanceotherwise);
(b) adjust(i) split, combine or reclassify any shares of its capital stock, or propose to split, combine or reclassify any of Parent's capital stock;
its share capital, (cii) makedeclare, declare set aside or pay any dividend, dividend or make any other distribution on(whether in cash, stock or directly property or indirectly redeem, purchase or otherwise acquire, any shares combination thereof) in respect of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (stock, except (i) dividends paid by any of the a direct or indirect wholly owned Subsidiary of Parent Subsidiaries to Parent or to any of its Parent’s other direct or indirect wholly owned Subsidiaries, (ii) dividends paid on, Subsidiaries or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of Parent Common Stock as payment for the exercise price Parent’s (or any of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(dits Subsidiaries’) issue any additional shares of share capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, exercisable for any shares of Parent’s (or any warrants of its Subsidiaries’) share capital, other than repurchases, redemptions or options to acquireacquisitions by Parent or any wholly owned Subsidiary of Parent of share capital or such other securities, as the case may be, of any such shares or Parent Voting Debt, except other wholly owned Subsidiary of Parent;
(c) (i) pursuant to issue, deliver, pledge or sell, or authorize the issuance, delivery or sale of, any Parent Shares or capital stock of any Parent Subsidiary, other than the issuance of (A) any Parent Shares upon the exercise of Parent Stock Options or in accordance with the satisfaction terms of the applicable Parent Benefit Plan; (B) any capital stock of any Parent Stock-Based AwardsSubsidiary to Parent or any other Subsidiary of Parent; or (C) any Parent Shares in connection with any acquisition permitted by Section 5.3(d); or (ii) amend any term of the Parent Shares (in each case, whether by merger, consolidation or otherwise) in any fashion that may have a materially adverse impact on Galaxy;
(d) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses, other than any acquisitions with consideration (comprised of cash, Parent Shares or other property) not in excess of $10,000,000 individually or $25,000,000 in the aggregate;
(e) change Parent’s methods of accounting, except as required by concurrent changes in GAAP, as agreed to by its independent public accountants;
(f) sell, lease, sublease, exchange or otherwise transfer any of Parent’s or any of its Subsidiaries’ material assets, properties, interests or businesses, or grant any option with respect to any of the foregoing, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, (ii) upon the conversion of convertible securities outstanding as of the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawRelated Person;
(g) sell, transfer, mortgage, encumber make any loans or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, advances to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiary, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholeRelated Person, other than loans or advances to wholly owned Subsidiaries of Parent or loans of less than $100,000 in the ordinary course of business consistent with past practice)aggregate;
(h) enter into adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any new line of business that is material to Parent and Subsidiary (other than the Parent Subsidiaries, taken as a wholeMergers);
(i) make take any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfersaction, or by purchase of knowingly fail to take any property action, which action or assets of any other Personfailure to act prevents or impedes, or make any capital expenditurescould reasonably be expected to prevent or impede, in each case other than the Intended Tax Treatment; or
(j) agree, resolve or commit to (i) investments in wholly owned Subsidiaries do any action restricted by this Section 5.3 or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(j) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take accept any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(k) settle any material claim, action or proceeding, except (i) in the ordinary course of business or (ii) settlements to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of June 30, 2005 in accordance with GAAP;
(l) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) take, or agree to take, any action restriction that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, Parent or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material to, the business of Parent and the Parent Subsidiaries; or
(p) agree or commit to take any of the actions prohibited its Subsidiaries from taking any action required by this Section 5.3.
Appears in 1 contract
Parent Forbearances. During Except (i) as set forth in Section 6.3 of the Parent Disclosure Letter, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable law, rule or regulation, or by any Governmental Entity, (iv) as required by a Parent Benefit Plan or any agreement in effect on the date hereof of which the Company has been notified and provided a true and correct copy prior to the date of this Agreement, and (v) with the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed), during the period from the date of this Agreement to the Effective Time, except as set forth in the Parent Disclosure Schedule (subject to Section 6.1(c)) and except as required by Law or as expressly contemplated or permitted by this Agreement, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and other than indebtedness of Parent or any of the wholly owned Parent Subsidiaries to Parent or any of the wholly owned Parent Subsidiaries or between wholly owned Parent Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(bi) adjust, split, combine or reclassify its capital stock (other than pursuant to the Reverse Stock Split), (ii) set any record or payment dates for the payment of Parent's any dividends or distributions on its capital stock;
(c) stock or make, declare or pay any dividend, dividend or make any other distribution onon any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or except that any wholly owned Subsidiary of the Parent may declare and pay dividends to its parent and other wholly owned Subsidiaries of the Parent, (iii) directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (i) dividends paid by any of pursuant to the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned SubsidiariesStock Buyback Program, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise vesting of Parent Restricted Shares or Parent Restricted Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms Units outstanding as of the date hereof or permitted to be issued under this Section 6.3 or pursuant to the surrender of shares to the Parent or the withholding of shares by the Parent to cover tax withholding obligations or to pay any applicable award agreementsexercise price under the Parent Common Stock Plans);
, or (div) issue grant any stock appreciation rights or grant any Person any right to acquire any shares of its capital stock, or issue, or commit to issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale grant, disposition, pledge or other encumbrance of, any additional shares of capital stock, any Parent Voting Debt or any securities convertible into or exchangeable for, or any warrants or options to acquire, any such shares or Parent Voting Debt, stock (except (i) pursuant to the exercise of stock options or vesting or settlement of awards under the Parent Common Stock Options or Plans outstanding as of the satisfaction date hereof, (ii) the award, following the date of any this -53- Agreement, by the compensation committee of the Parent Stock-Based Awards, in each case, Board of Parent Restricted Stock Units utilizing shares of Parent Common Stock returned to a Parent Common Stock Plan as a result of Parent Restricted Stock Units outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued thereafter in compliance with this Agreement, that expire prior to the Closing pursuant to their terms (ii) upon the conversion of convertible securities outstanding such awards being referred to herein as of the date of this Agreement“Replacement Parent RSUs”), or (iii) for issuances by a wholly owned Parent Subsidiary as otherwise permitted to be issued under this Section 6.3), any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any additional shares of capital stock to such Subsidiary's parent stock, or another wholly owned Parent Subsidiary;
(e) notwithstanding any other provision hereof, increase, decrease, change or exchange any Parent Preferred Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalizationrespect of, in each case other than as required by the terms thereof as lieu of, or in effect substitution for, any shares of its capital stock outstanding on the date of this Agreement;
(f) other than as required to comply with applicable Law (including Section 409A of the Code) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law;
(gb) sell, transfer, mortgage, encumber or otherwise dispose of any of its material assets or material properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person (other than Parent a direct wholly owned Subsidiary), by merger, consolidation, asset sale or other business combination (including formation of a Parent Subsidiary joint venture) or cancel, release or assign any indebtedness to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiarysuch Person, in each case, except (i) in the ordinary course of business consistent with past practice, including sales of repossessed assets, (ii) dispositions of obsolete or worthless assets, (iii) sales of loans, receivables and other assets in the ordinary course of business consistent with past practice and (iv) sales of immaterial assets which involve the sale of assets with a purchase price of $250,000 or less in any single case or $250,000 in all such cases;
(c) make any investment or acquisition, by purchase or other acquisition of stock or other equity interests, by merger, consolidation, asset purchase or other business combination, or by contributions to capital; or make any material purchases of any property or assets, in or from any other Person other than a wholly owned Subsidiary of the Parent, except (i) as otherwise permitted by this Section 6.3 and (ii) other acquisitions in the ordinary course of business and, in any case, involving consideration in an aggregate amount not in excess of $250,000;
(d) other than the entry into a new lease for office space in Denver, Colorado (with monthly rent equal to or less than the Parent’s existing lease), enter into, renew, extend, amend or terminate any contract, lease or agreement that is material or would be a Parent Contract;
(e) other than Replacement Parent RSUs and general pay increases, including in connection with promotions, made in the ordinary course of business consistent with past practice, for employees, directors or independent contractors generally or as provided by any agreement in effect on the date hereof (true and correct copies of which have been delivered to the Company prior to the date of this Agreement), (i) increase, or commit to increase, the compensation or severance payable (including by granting or increasing the rate or terms of any salary, bonus, pension or other compensation except pursuant to the terms of any Parent and the Parent SubsidiariesBenefit Plan), taken as a whole, (ii) pay any severance other than in the ordinary course of business consistent with past practice)practice or (iii) except as may be required, or advisable, to comply with applicable law or contract, amend, establish or enter into any pension, retirement, profit-sharing, severance, retention or welfare benefit plan or agreement or incentive or employment, agreement with or for the benefit of any employee, director or independent contractor or accelerate the vesting of any stock options or other stock-based compensation;
(h) enter into any new line of business that is material to Parent and the Parent Subsidiaries, taken as a whole;
(i) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of business;
(jf) amend its Certificate of Incorporation (except for the Reverse Stock Split Charter Amendment), bylaws or Bylaws similar governing documents or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions documents of any confidentiality or standstill agreements in place with any third partiesof Subsidiary of the Parent;
(kg) settle enter into any new material line of business outside of its existing business;
(h) assign, transfer, lease, cancel, fail to renew or fail to extend any material claim, action Permit issued by any Governmental Entity or proceeding, except any State Regulator;
(i) incur any indebtedness for borrowed money, issue any debt securities or assume, guarantee or endorse or otherwise become responsible for the obligations of another Person, or make any loans, advances of capital contributions to, or investments in, any other Person, in each case, except in the ordinary course of business consistent with past practice;
(j) make or change any material Tax election or settle or compromise any material Tax liability of the Parent or any of its Subsidiaries;
(iik) settlements to the extent subject to and not make any material changes in excess its accounting methods or method of reserves that relate to the matter being settled existing Tax accounting, practices or policies, except as of June 30may be required under applicable law, 2005 in accordance with rule, regulation or GAAP;
(l) effect or permit, with respect to the Parent and any Subsidiary of the Company, a “plant closing” or “mass layoff”, as such terms are defined under the Worker Adjustment and Retraining Act of 1988, as amended;
(m) account for, manage or treat accounts receivable (including accelerating the collection thereof) or accounts payable (including delaying the payment thereof) in any manner other than in the in the ordinary course of business consistent with past practice;
(n) except as permitted by this Agreement, take any action that is intended or would reasonably be reasonably likely expected to result in any of the conditions to the Merger set forth in Article VII Section 8.1 or 8.3 not being satisfied, except as may be required by applicable Law; or
(mo) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeagree to, or agree to take, make any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(o) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any Intellectual Property that is used in the conduct of, or is otherwise material commitment to, the business of Parent and the Parent Subsidiaries; or
(p) agree take or commit to take announce any of the actions prohibited by this Section 5.36.3.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Parent Forbearances. During Without limiting the period from the date generality of this Agreement to the Effective TimeSection 5.1 above, except as set forth in Section 5.3 of the Parent Disclosure Schedule (subject to Section 6.1(c)) Letter, and except as required by Law or as expressly contemplated or permitted by this AgreementAgreement or as required by applicable Law, from the date of this Agreement until the Effective Time, Parent will shall not, and will shall not permit any of the Parent its Subsidiaries to, without the prior written consent of the Company:Company (such consent not to be unreasonably withheld, delayed or conditioned):
(a) incur any indebtedness for borrowed money (except for indebtedness contemplated by the Financing Commitments and i) other than indebtedness of Parent dividends and distributions by a direct or any of the wholly owned Parent Subsidiaries indirect Subsidiary to Parent or any of the direct or indirect wholly owned Parent Subsidiaries Subsidiary of Parent, declare, set aside or between wholly owned Parent Subsidiaries) pay any dividends on, make any other distributions in excess of $25 million in the aggregaterespect of, or assumeenter into any agreement with respect to the voting of, guarantee, endorse or otherwise as an accommodation become responsible for the obligations any of any other individual, corporation or other entity, or make any loan or advance;
its capital stock; (bii) adjust, split, combine or reclassify any of Parent's 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;
, except upon the exercise of stock options or settlement of stock units or conversion of convertible securities that are outstanding as of the date of this Agreement in accordance with their present terms and except for the Parent Reverse Split; or (ciii) makepurchase, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase redeem or otherwise acquire, acquire any shares of its capital stock or any other securities or obligations convertible any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (whether currently convertible other than the withholding of shares of common stock to satisfy the exercise price or convertible only after Tax withholding upon the passage exercise of time stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the occurrence date of certain eventsthis Agreement in accordance with their present terms and Parent’s practices as of the date of this Agreement);
(b) into issue, deliver, sell, pledge or exchangeable for otherwise encumber or subject to any Lien any shares of its capital stock (except (i) dividends paid by any of the wholly owned Parent Subsidiaries to Parent or to any of its wholly owned Subsidiaries, (ii) dividends paid on, or conversion of, Parent Preferred Stock outstanding on the date hereof in accordance with the certificate of designation for such Parent Preferred Stock, and (iii) the acceptance of shares of Parent Common Stock as payment for the exercise price of Parent Stock Options or for withholding taxes incurred in connection with the exercise of Parent Stock Options, in each case, in accordance with past practice and in accordance with applicable Law and the terms of the applicable award agreements);
(d) issue any additional shares of capital stock, any Parent Voting Debt other voting securities, including any restricted shares of its common stock, or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares shares, voting securities or Parent Voting Debtconvertible securities, except including any stock options and unit awards (other than (i) pursuant to the issuance of its common stock upon the exercise of Parent Stock Options stock options or the satisfaction vesting of any Parent Stock-Based Awardsrestricted shares or conversion of convertible securities, in each case, case that are outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement in accordance with their present terms; or issued thereafter in compliance with this Agreement, (ii) upon the conversion issuance of convertible securities outstanding stock options (but, for the avoidance of doubt, not restricted stock units or any other Parent Stock Awards) prior to or at the Effective Time to certain employees and directors of and consultants to Parent (“Post‑Closing Parent Stock Options”), it being understood and agreed that any such Post‑Closing Parent Stock Options shall be issued in accordance with and subject to the terms of Parent's 2007 Stock Plan and form award agreement thereunder (as previously made available to the Company) and such total number of Post-Closing Parent Stock Options so granted shall not exceed a number equal to three percent (3%) multiplied by the date of this Agreement, or (iii) for issuances by a wholly owned Parent Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Parent SubsidiaryClosing Capitalization);
(ec) notwithstanding amend its certificate of incorporation or bylaws or the Organizational Documents of any other provision hereofof its Subsidiaries, increaseexcept as contemplated herein or necessary to effect the transactions contemplated herein, decreaseincluding without limitation the filing with the Secretary of State of Delaware of the New Preferred Certificates of Designation and an amendment to Parent’s certificate of incorporation to effect the Parent Reverse Split, change or exchange any Parent Preferred Stock for a different the Name Change and an increase in the authorized number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, in each case other than as required by the terms thereof as in effect on the date of this AgreementParent Common Stock;
(fd) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets in each case, except for acquisitions of inventory or other assets (other than as required to comply with applicable Law (including Section 409A of the Codeproperty, plant and equipment) or a Parent Benefit Plan as in effect on the date hereof or collective bargaining or similar labor union or other agreement the existence of which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice, increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice pay any bonus, (iv) adopt, enter into, terminate or amend in any material respect any Parent Benefit Plan or any collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Parent S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Parent Benefit Plan; provided, however, that in no event acquisition otherwise permitted by the foregoing may any such acceleration of vestingbe made to the extent it may reasonably be expected to prevent, lapse of restrictions materially delay or funding be as a result of the execution and delivery of this Agreement or materially impede the consummation of the transactions contemplated by this Agreement unless required to comply with applicable LawAgreement;
(ge) sell, assign, transfer, mortgagelease, license, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any of its properties or assets that are material to Parent and the Parent Subsidiaries, taken as a whole, or create any security interest in any transaction such assets or series of transactions, to any Person other than Parent or a Parent Subsidiary or cancel, release or assign to any such Person any indebtedness or any claims held by Parent or any Parent Subsidiaryproperties, in each case that is material to Parent and the Parent Subsidiaries, taken as a wholecase, other than in the ordinary course of business consistent with past practice;
(f) except for borrowings under the Parent’s Credit Agreements that are incurred in the ordinary course of business consistent with past practice, or Indebtedness owed by any wholly owned Subsidiary to Parent or any other wholly owned Subsidiary of Parent, incur, redeem, prepay, repurchase, defease, cancel, or modify the terms of, any Indebtedness or assume, guarantee or endorse, or otherwise become responsible for the Indebtedness of any Person (other than any of its wholly owned Subsidiaries);
(g) make any loans or advances to any Person other than its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(h) enter into change in any new line material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date of business that is material to Parent and the Parent Subsidiariesthis Agreement, taken except as a wholerequired by changes in GAAP or regulatory accounting principles;
(i) make investments in Persons (other than in any material acquisition of its wholly owned Subsidiaries or investment either any Related Entity) in excess of $50,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or by purchase of entering into binding agreements with respect to any property such investment or assets of any other Person, or make any capital expenditures, in each case other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of Parent and its Subsidiaries in the ordinary course of businessacquisition;
(j) amend its Certificate make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any material claim or assessment from a Taxing Authority or surrender any right to claim a refund of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Parent Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 4.19(b) a material amount of this Agreement), or any action taken by any Person, from the Parent Rights Agreement or from any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third partiesTaxes;
(k) settle except as expressly permitted by any other provision of this Section 5.3 or as set forth in Section 5.3 of the Parent Disclosure Letter, terminate or waive any material claimprovision of any Parent Material Contract other than normal renewals of such Contracts without materially adverse changes, action additions or proceedingdeletions of terms, except or enter into or renew any agreement or contract or other binding obligation of Parent or its Subsidiaries containing (i) any restriction on the ability of Parent and its Subsidiaries, including, after the Merger, the Company and its Subsidiaries, to conduct their businesses as presently conducted or currently contemplated to be conducted after the Merger or (ii) any restriction on Parent or its Subsidiaries, including, after the Merger, the Company and its Subsidiaries, in engaging in any type of activity or business;
(l) (i) incur any capital expenditures or (ii) enter into any Contract obligating Parent (or any of its Subsidiaries) to make capital expenditures, except for, in each case, capital expenditures not in excess of $50,000 in the aggregate;
(m) except as required by agreements or instruments in effect on the date of this Agreement, alter in any material respect, fail to satisfy or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which Parent directly or indirectly holds any equity or ownership interest on the date of this Agreement;
(n) except as required by the terms of Parent Benefit Plans or Parent Employment Agreements as in effect on the date of this Agreement or as required by applicable Law or as provided by this Agreement (including without limitation the issuance of the Post‑Closing Parent Stock Options and the Key Employee Agreement Amendment), or as in the ordinary course of business consistent with past practice, (i) grant or pay to any current or former director, officer, employee or consultant of Parent or any of its Subsidiaries any increase in compensation, except for annual or promotional salary or wage increases in the ordinary course of business consistent with past practice not to exceed, in the aggregate for all such increases, 10% of the aggregate wage and salary expense for the prior year to Parent and its Subsidiaries on a consolidated basis; (ii) grant, pay, promise to pay, or enter into any Parent Benefit Plan or Parent Employment Agreement to pay, to any current or former director, officer, employee, consultant or service provider of Parent or any of its Subsidiaries any severance, retention, change in control or termination pay or any increase in actual or potential severance, retention, change in control or termination pay; (iii) increase the compensation or benefits provided or payable under any Parent Benefit Plan or Parent Employment Agreement; (iv) modify the terms of any equity-based award granted under any Parent Stock Plan; (v) make any discretionary contributions or payments with respect to any Parent Benefit Plan or Parent Employment Agreement to any trust or other funding vehicle; (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of Parent or any of its Subsidiaries or otherwise pay any amounts not due such individual; (vii) enter into any new or amend or modify any existing Parent Employment Agreement (or agreement that would be a Parent Employment Agreement if in effect on the date of this Agreement), other than employment agreements for new hires with an annual compensation not exceeding $50,000 in the aggregate; (viii) establish any new or amend or modify any existing Parent Benefit Plans (or plans that would be a Parent Benefit Plan if in effect on the date of this Agreement); or (ix) establish, adopt or enter into any collective bargaining agreement;
(o) except as set forth in Section 5.3 of the Parent Disclosure Letter, pay, discharge, settle, waive, release or assign or compromise any legal action, litigation, arbitration, suit, investigation or proceeding, other than any such payment, discharge, settlement or compromise (i) that involves solely money damages in an amount not in excess of $50,000 in the aggregate, and that does not create binding precedent for other pending or potential legal action, litigation, arbitration or proceeding, or (ii) settlements pursuant to the extent subject to and not terms of any Contract in excess effect on the date of reserves that relate this Agreement (copies of which have been made available to the matter being settled existing as Company prior to the date of June 30, 2005 in accordance with GAAPthis Agreement);
(lp) take any action that is intended or would be reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except as may be required by applicable Law; or
(m) implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(n) takeaction, or agree knowingly fail to take, take any action that within its control, which action or failure to act would reasonably be expected to prevent the Merger from qualifying as a "“reorganization" ” within the meaning of Section 368(a) of the Code or as a contribution governed by Section 351 of the Code;
(oq) except adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries (other than the Merger);
(r) fail to maintain in full force and effect the material insurance policies covering Parent and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(s) enter into any hedging Contracts not in the ordinary course of businessbusiness consistent with past practice;
(t) fail to comply in all material respects with the Securities Act, sellthe Exchange Act or the Xxxxxxxx-Xxxxx Act in respect of all Parent SEC Documents filed with or furnished to, assignas applicable, abandon, license, the SEC;
(u) purchase or otherwise dispose acquire, directly or indirectly (including by way of providing financing), any Intellectual Property that is used Equity Interests in the conduct of, Company or is otherwise material to, any of the business of Parent and the Parent Company's Subsidiaries; or
(pv) commit or agree or commit to take any of the actions prohibited contemplated by this Section 5.35.3(a) through Section 5.3 (u) above.
Appears in 1 contract
Samples: Merger Agreement (CollabRx, Inc.)
