Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries to do, any of the following: (a) (i) increase the compensation payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries; (b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; (c) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiaries; (d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests; (e) offer, sell, issue or grant, or authorize the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement); (f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice); (g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice; (h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents; (i) effect any change in any accounting methods, principles or practices of the Company, except as may be required by a change in GAAP, or any change in Tax accounting; (i) incur any indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company; (k) enter into any contract which, if such contract is entered into, would be a Material Contract; (l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement; (m) make any nonroutine Tax election or settle or compromise any Tax liability or refund; (i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value; (o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11); or (p) agree in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.015.1, except as set forth in Section 7.02 5.2 of the Company's Company Disclosure LetterSchedule, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 3.12 of the Company Disclosure Schedule and in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any acquisition, purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as contemplated by the Company Rights Agreement and not in violation of this Agreement (including without limitation Sections 3.29 and 5.2(q) hereof), offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "“phantom" ” stock, "“phantom" ” stock rights, stock appreciation rights SARs or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practicepractice and other than asset acquisitions which do not exceed $25,000 in any individual transaction or $50,000 in the aggregate);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiariessubsidiaries that have a fair market or book value (whichever is greater) of more than $25,000 individually or $50,000 in the aggregate, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) propose or adopt any amendments to its certificate articles of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 2002 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessIndebtedness (other than borrowings for working capital purposes under the Company’s existing revolving credit facility disclosed on Section 3.17 of the Company Disclosure Schedule), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "“keep well" ” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company;
(k) enter into any contract whichContract described in Section 3.17 other than Contracts with customers and suppliers for goods or services entered into in the ordinary course of business and consistent with past practices that are not expected to result in payments to or liabilities of the Company and its subsidiaries in excess of $100,000 for any single Contract or series of related Contracts which are reasonably expected to be performed within 90 days of entry or as permitted by other subsections of this Section 5.2 ; provided, if such contract is entered intohowever, would be a Material Contractthat Parent agrees that it shall not unreasonably withhold or delay its consent to Contracts of the type specified in sub-clause (j) of Section 3.17 to the extent not permitted by the foregoing;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents (but not in excess of the amount so reflected or reserved) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) take any of the actions set forth in Section 3.4 not otherwise specified herein;
(n) settle the terms of any material litigation affecting the Company or (ii) cancel any Material indebtedness (individually of its subsidiaries, including any litigation with shareholders of the Company or in involving this Agreement or the aggregate) or waive any claims or rights of substantial valueTransactions;
(o) enter into make or revoke any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, settle or compromise any material Tax liability, or agree to an extension of time of a statute of limitations;
(p) make or agree to make any new agreements withcapital expenditures other than capital expenditures made in the ordinary course of business and consistent with past practices which individually do not exceed $100,000 and which in the aggregate do not exceed $250,000;
(q) (i) amend or waive any provisions of the Company Rights Agreement (other than such amendments as are necessary to accommodate this Agreement and the Transactions, but not with respect to any other Acquisition Proposal) or commitments toredeem any Rights or (ii) implement or adopt any other so-called “poison pill,” shareholder rights plan or other similar plan; provided, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year however, that the Company may delay the “Distribution Date” (including, for as defined in the avoidance Company Rights Agreement) as contemplated by Section 3(a)(ii) of doubt, the directors' and officers' liability insurance policies referred Company Rights Agreement to a date not later than the date described in Section 7.11)3(a)(i) of the Company Rights Plan without the consent of Parent; or
(pr) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would make any representation or warranty of the Company in this Agreement, the Tender and Option Agreement or the Top-up Option Agreement untrue or incorrect in any material respect or cause any condition set forth in Annex A to occur or any condition in Article VII to be unsatisfied.
Appears in 2 contracts
Samples: Merger Agreement (Euramax International PLC), Merger Agreement (Euramax International PLC)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.017.1, except as set forth in Section 7.02 7.2 of the Company's Disclosure Letter, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this AGREEMENT AND PLAN OF MERGER Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries to do, any of the following:
(a) (i) increase the compensation payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries; provided that the Company may amend the Company Option Plans to accelerate the vesting of any unvested Company Stock Options and to permit employees to tender any shares of Company Common Stock acquired upon exercise of any Company Stock Option into the Offer;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or Subsidiary, (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesSubsidiaries or (iii) the repurchase of Company Rights pursuant to the terms (as in effect on the date of this Agreement) of the Company's Rights Agreement to the extent required by this Agreement or by a Court of competent jurisdiction;
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock (and associated Company Rights) upon the exercise of the Company Stock Options and AGREEMENT AND PLAN OF MERGER Warrants outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien (other than a Permitted Encumbrance) with respect to, any of the properties or assets (including technological assets) of the Company or any of its SubsidiariesSubsidiaries that are, individually or in the aggregate, material to any of the Company's three core business segments (information systems, aerospace and systems technologies), except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 1997 materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(i) incur any indebtednessIndebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice practice, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;; or
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 19991998, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine non-routine Tax election or settle or compromise any Material Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company AGREEMENT AND PLAN OF MERGER included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or practice, (ii) cancel any Material indebtedness Indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
value or (oiii) enter into any new agreements withsubject to Section 7.15, waive the benefits of, or commitments toagree to modify in any manner, insurance brokers any confidentiality, standstill or advisers extending beyond one year similar agreement to which the Company or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)its Subsidiaries is a party; or
(po) agree in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Tracor Inc /De), Merger Agreement (Gec Acquisition Corp)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter7.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentParent and after the Control Date, also by a majority of the Independent Directors, which consents shall not be unreasonably withheld or delayed, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries to do, any of the following:
(a) (i) increase the compensation payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practicepractice or as required under any existing employment agreements, and except that the Company may pay annual bonuses for fiscal year 1999 as provided in Item 7 of Section 5.14(a) of the Company's Disclosure Letter; (ii) grant any severance or termination pay (other than pursuant to any existing employment agreements or the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiaries);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(i) incur any indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11); or
(p) agree in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Eig Acquisition Corp), Merger Agreement (Elite Information Group Inc)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.014.1, except as set forth in Section 7.02 4.2 of the Company's Company Disclosure Letter, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentParent (which consent shall not be unreasonably withheld or delayed), from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 2.11 of the Company Disclosure Letter and in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or any Benefit Plan of the Company or its Subsidiaries except as required by applicable Law or any ERISA Affiliate; (iv) take any action to accelerate or otherwise remove restrictions with respect to any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; (v) grant any options to purchase Company Common Stock or any other capital stock of the Company; or (vi) terminate the employment of any employee or consultant who is party to an employment or consulting agreement with the Company (other than for cause pursuant to such employment or consulting agreement);
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the Company;
(c) directly or indirectly redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests, or declare, set aside or pay any dividend or other distribution payable in cash, stock or property of any class of its capital stock;
(e) offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(i) incur any indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11); or
(p) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco (which consent will not unreasonably be withheld or delayed), from the date of this Agreement until the Effective Time, it will shall not do, and will not permit any of its Subsidiaries to do, do any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the Company may amend the Company Stock Option Plans or other action to accelerate the vesting of any unvested Options that are issued and outstanding on the date hereof and disclosed in Section 2.3 of the Company Disclosure Schedule; and may otherwise amend the Company Stock Option Plans (and option agreements entered into thereunder) to effectuate the purposes of Section 1.11 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date of this Agreement and disclosed in Section 2.3 of the Company Disclosure Statement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any that are material to the business of its Subsidiariesthe Company, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) except as contemplated by Section 1.4, propose or adopt any amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 26, 1999 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money other than pursuant to the Revolving Line of Credit Note & Loan Agreement, dated as of March 31, 1998, between the Company and Wellx Xxxgo Bank, N.A., issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its SubsidiariesCompany, guarantee any such indebtedness or debt securities of another Personperson, enter into any capital lease, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant or grant to existing lines of credit incurred in any person or create any Lien outside the ordinary course of business consistent with past practice business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Companyperson;
(k) enter into or amend any contract which, if such contract is Contract of a type described in Section 2.16 (except for Licenses which are not material to the Company or its business and except for Contracts entered into, would be into or amended in the ordinary course of business) or enter into or amend a Material Contractlease for real property (it being understood the Company enters into new leases in the ordinary course of business);
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(iin) cancel make or agree to make any Material indebtedness (individually or capital expenditures for the period from October 1, 2000 until the Effective Time in excess of the amount of capital expenditures for such period reflected in the aggregatecapital budget attached as Section 4.2(n) or waive any claims or rights of substantial valuethe Company Disclosure Schedule (except for capital expenditures which exceed such budgeted amount by less than $250,000);
(o) enter into make any new agreements withpayment to any landlord under a Lease, except for payments of rent in the ordinary course of business and except for payments not to exceed the amount, and for the purpose, set forth in Section 4.2(o) of the Company Disclosure Schedule in the aggregate. (p) form, create or organize any Subsidiary, or commitments topurchase or acquire any capital stock or other ownership interest in any corporation, insurance brokers partnership, limited liability company, joint venture or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)other entity; or
(pq) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would cause any condition set forth in Article VI to be unsatisfied.
Appears in 1 contract
Samples: Merger Agreement (Mindel Laurence B)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.015.1, except as set forth in Section 7.02 5.2 of the Company's Company Disclosure LetterSchedule, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 3.12 of the Company Disclosure Schedule and in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any acquisition, purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as contemplated by the Company Rights Agreement and not in violation of this Agreement (including without limitation Sections 3.29 and 5.2(q) hereof), offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practicepractice and other than asset acquisitions which do not exceed $25,000 in any individual transaction or $50,000 in the aggregate);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiariessubsidiaries that have a fair market or book value (whichever is greater) of more than $25,000 individually or $50,000 in the aggregate, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) propose or adopt any amendments to its certificate articles of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 2002 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessIndebtedness (other than borrowings for working capital purposes under the Company's existing revolving credit facility disclosed on Section 3.17 of the Company Disclosure Schedule), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures Contract described in Section 3.17 other than the capital expenditures contemplated by the Company's annual operating plan Contracts with customers and suppliers for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election goods or settle or compromise any Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, services entered into in the ordinary course of business and consistent with past practice practices that are not expected to result in payments to or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included and its subsidiaries in the Filed SEC Documents excess of $100,000 for any single Contract or incurred in the ordinary course series of business consistent with past practice related Contracts which are reasonably expected to be performed within 90 days of entry or (ii) cancel any Material indebtedness (individually as permitted by other subsections of this Section 5.2 ; provided, however, that Parent agrees that it shall not unreasonably withhold or in the aggregate) or waive any claims or rights of substantial value;
(o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred delay its consent to in Section 7.11); or
(p) agree in writing or otherwise to do any Contracts of the foregoing.type specified in sub-clause (j) of Section
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco (which consent will not unreasonably be withheld or delayed), from the date of this the Original Agreement until the Effective Time, it will shall not do, and will not permit any of its Subsidiaries to do, do any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the Company may amend the Company Stock Option Plans or take other action to accelerate the vesting of any unvested Options that were issued and outstanding on the date of the Original Agreement and disclosed in Section 2.3 of the Company Disclosure Schedule; and may otherwise amend the Company Stock Option Plans (and option agreements entered into thereunder) to effectuate the purposes of Section 1.11 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this the Original Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date of this the Original Agreement and disclosed in Section 2.3 of the Company Disclosure Statement in accordance with the terms thereof (as in effect on the date of this the Original Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any 27 assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any that are material to the business of its Subsidiariesthe Company, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) except as contemplated by Section 1.4, propose or adopt any amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 26, 1999 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money other than pursuant to the Revolving Line of Credit Note & Loan Agreement, dated as of March 31, 1998, between the Company and Wellx Xxxgo Bank, N.A., issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its SubsidiariesCompany, guarantee any such indebtedness or debt securities of another Personperson, enter into any capital lease, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant or grant to existing lines of credit incurred in any person or create any Lien outside the ordinary course of business consistent with past practice business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Companyperson;
(k) enter into or amend any contract which, if such contract is Contract of a type described in Section 2.16 (except for Licenses which are not material to the Company or its business and except for Contracts entered into, would be into or amended in the ordinary course of business) or enter into or amend a Material Contractlease for real property (it being understood the Company enters into new leases in the ordinary course of business);
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(iin) cancel make or agree to make any Material indebtedness (individually or capital expenditures for the period from October 1, 2000 until the Effective Time in excess of the amount of capital expenditures for such period reflected in the aggregatecapital budget attached as Section 4.2(n) or waive any claims or rights of substantial valuethe Company Disclosure Schedule (except for capital expenditures which exceed such budgeted amount by less than $250,000);
(o) enter into make any new agreements withpayment to any landlord under a Lease, except for payments of rent in the ordinary course of business and except for payments not to exceed the amount, and for the purpose, set forth in Section 4.2(o) of the Company Disclosure Schedule in the aggregate;
(p) form, create or organize any Subsidiary, or commitments topurchase or acquire any capital stock or other ownership interest in any corporation, insurance brokers partnership, limited liability company, joint venture or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)other entity; or
(pq) agree in writing or otherwise to do take any of the foregoing.foregoing actions or any action which would cause any condition set forth in Article VI to be unsatisfied. 28
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- --------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco (which consent will not unreasonably be withheld or delayed), from the date of this the Original Agreement until the Effective Time, it will shall not do, and will not permit any of its Subsidiaries to do, do any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the -------- ------- Company may amend the Company Stock Option Plans or take other action to accelerate the vesting of any unvested Options that were issued and outstanding on the date of the Original Agreement and disclosed in Section 2.3 of the ------------------ Company Disclosure Schedule; and may otherwise amend the Company Stock Option --------------------------- Plans (and option agreements entered into thereunder) to effectuate the purposes of Section 1.11 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this the Original Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date of this the Original Agreement and disclosed in Section 2.3 of the Company Disclosure Statement in accordance with the terms ----------------------------------------------- thereof (as in effect on the date of this the Original Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any that are material to the business of its Subsidiariesthe Company, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) except as contemplated by Section 1.4, propose or adopt any amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 26, 1999 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money other than pursuant to the Revolving Line of Credit Note & Loan Agreement, dated as of March 31, 1998, between the Company and Xxxxx Fargo Bank, N.A., issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its SubsidiariesCompany, guarantee any such indebtedness or debt securities of another Personperson, enter into any capital lease, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant or grant to existing lines of credit incurred in any person or create any Lien outside the ordinary course of business consistent with past practice business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Companyperson;
(k) enter into or amend any contract which, if such contract is Contract of a type described in Section 2.16 (except for Licenses which are not material to the Company or its business and except for Contracts entered into, would be into or amended in the ordinary course of business) or enter into or amend a Material Contractlease for real property (it being understood the Company enters into new leases in the ordinary course of business);
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(iin) cancel make or agree to make any Material indebtedness (individually or capital expenditures for the period from October 1, 2000 until the Effective Time in excess of the amount of capital expenditures for such period reflected in the aggregatecapital budget attached as Section ------- 4.2(n) or waive any claims or rights of substantial valuethe Company Disclosure Schedule (except for capital expenditures which ----------------------------------------- exceed such budgeted amount by less than $250,000);
(o) enter into make any new agreements withpayment to any landlord under a Lease, except for payments of rent in the ordinary course of business and except for payments not to exceed the amount, and for the purpose, set forth in Section 4.2(o) of the --------------------- Company Disclosure Schedule in the aggregate; ---------------------------
(p) form, create or organize any Subsidiary, or commitments topurchase or acquire any capital stock or other ownership interest in any corporation, insurance brokers partnership, limited liability company, joint venture or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)other entity; or
(pq) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would cause any condition set forth in Article VI to be unsatisfied.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- --------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco (which consent will not unreasonably be withheld or delayed), from the date of this Agreement until the Effective Time, it will shall not do, and will not permit any of its Subsidiaries to do, do any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the Company may amend the Company Stock Option Plans or -------- ------- other action to accelerate the vesting of any unvested Options that are issued and outstanding on the date hereof and disclosed in Section 2.3 of the Company -------------------------- Disclosure Schedule; and may otherwise amend the Company Stock Option Plans ------------------- (and option agreements entered into thereunder) to effectuate the purposes of Section 1.11 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date of this Agreement and disclosed in Section ------- 2.3 of the Company Disclosure Statement in accordance with the terms thereof (as --------------------------------------- in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any that are material to the business of its Subsidiariesthe Company, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) except as contemplated by Section 1.4, propose or adopt any amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 26, 1999 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money other than pursuant to the Revolving Line of Credit Note & Loan Agreement, dated as of March 31, 1998, between the Company and Xxxxx Fargo Bank, N.A., issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its SubsidiariesCompany, guarantee any such indebtedness or debt securities of another Personperson, enter into any capital lease, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant or grant to existing lines of credit incurred in any person or create any Lien outside the ordinary course of business consistent with past practice business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Companyperson;
(k) enter into or amend any contract which, if such contract is Contract of a type described in Section 2.16 (except for Licenses which are not material to the Company or its business and except for Contracts entered into, would be into or amended in the ordinary course of business) or enter into or amend a Material Contractlease for real property (it being understood the Company enters into new leases in the ordinary course of business);
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(iin) cancel make or agree to make any Material indebtedness (individually or capital expenditures for the period from October 1, 2000 until the Effective Time in excess of the amount of capital expenditures for such period reflected in the aggregatecapital budget attached as Section 4.2(n) or waive any claims or rights of substantial valuethe Company Disclosure Schedule (except for capital ------------------------------------------------- expenditures which exceed such budgeted amount by less than $250,000);
(o) enter into make any new agreements withpayment to any landlord under a Lease, except for payments of rent in the ordinary course of business and except for payments not to exceed the amount, and for the purpose, set forth in Section 4.2(o) of the --------------------- Company Disclosure Schedule in the aggregate. ---------------------------
(p) form, create or organize any Subsidiary, or commitments topurchase or acquire any capital stock or other ownership interest in any corporation, insurance brokers partnership, limited liability company, joint venture or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)other entity; or
(pq) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would cause any condition set forth in Article VI to be unsatisfied.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.017.1, except as set forth in Section 7.02 7.2 of the Company's Disclosure Letter, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries to do, any of the following:
(a) (i) increase the compensation payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries; provided that the Company may amend the Company Option Plans to accelerate the vesting of any unvested Company Stock Options and to permit employees to tender any shares of Company Common Stock acquired upon exercise of any Company Stock Option into the Offer;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or Subsidiary, (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesSubsidiaries or (iii) the repurchase of Company Rights pursuant to the terms (as in effect on the date of this Agreement) of the Company's Rights Agreement to the extent required by this Agreement or by a Court of competent jurisdiction;
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock (and associated Company Rights) upon the exercise of the Company Stock Options and Warrants outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien (other than a Permitted Encumbrance) with respect to, any of the properties or assets (including technological assets) of the Company or any of its SubsidiariesSubsidiaries that are, individually or in the aggregate, material to any of the Company's three core business segments (information systems, aerospace and systems technologies), except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 1997 materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(i) incur any indebtednessIndebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice practice, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;; or
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 19991998, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine non-routine Tax election or settle or compromise any Material Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or practice, (ii) cancel any Material indebtedness Indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
value or (oiii) enter into any new agreements withsubject to Section 7.15, waive the benefits of, or commitments toagree to modify in any manner, insurance brokers any confidentiality, standstill or advisers extending beyond one year similar agreement to which the Company or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)its Subsidiaries is a party; or
(po) agree in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Tracor Inc /De)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco, from the date of this Agreement hereof until the Effective Time, neither it will not do, and will not permit nor any of its Subsidiaries to do, any of the followingshall:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee, except any such grants made in the ordinary course of business consistent with past practice, or pursuant to agreements, plans or policies existing on the date hereof or as otherwise provided under this Agreement; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the Company may amend the Company Stock Option Plans or take other action to accelerate the vesting of any unvested Options that were issued and outstanding on the date hereof and disclosed in Section 2.3 of the Company Disclosure Schedule; and may otherwise amend the Company Stock Option Plans (and option agreements entered into thereunder) to effectuate the purposes of Section 1.10 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for other than dividends at the current annual rate of $0.07 per share or dividends or distributions by a wholly wholly-owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreementhereof) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date hereof and disclosed in Section 2.3 of this Agreement the Company Disclosure Statement in accordance with the terms thereof (as in effect on the date of this Agreementhereof);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an stock or other equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or interest therein or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its SubsidiariesSubsidiaries that are material to the business of the Company or any of its Subsidiaries (including without limitation any Intellectual Property), except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice (provided, however, that (i) Newco has approved the Company's sale or closing of its Maui Tacos store in New York City and (iiiii) the licensing Company shall have the right to sell its Maui Tacos store in Atlanta, Georgia, subject to Newco's written consent of software to customers the terms of such sale, which will not be unreasonably withheld or delayed); or license any Intellectual Property other than in the ordinary course of business consistent with past practice;.
(h) except as contemplated by Section 1.4, propose or adopt any amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of June 30, 2001 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant or grant to existing lines of credit incurred in any person or create any Lien outside the ordinary course of business consistent with past practice business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson except for (x) loans of up to $50,000 in the aggregate, other than the terms of which have been approved in writing by Newco, such approval not to be unreasonably withheld or in delayed, and (y) loans, advances, capital contributions or investments between any wholly-owned Subsidiary of the Company and the Company or any direct or indirect wholly another wholly-owned Subsidiary of the Company;
(k) (i) enter into or amend any contract whichContract of a type described in Section 2.17 or Section 2.25(c) or enter into or amend a lease for real property, if other than in the ordinary course of business consistent with past practice (including on substantially the same terms and conditions), or (ii) enter into or renew any vendor or supply agreement, absent the written consent of Newco, such contract is entered into, would consent not to be a Material Contractunreasonably withheld or delayed;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or practice;
(m) make any Tax election except in accordance a manner consistent with their terms, of liabilities reflected or reserved against inpast practice, or contemplated bychange any method of accounting for Tax purposes, except as required by applicable law or GAAP, or settle or compromise any material Tax liability;
(n) make or agree to make any material capital expenditures for the most recent consolidated financial statements (or period from June 30, 2001 until the notes thereto) of the Company included Effective Time other than in the Filed SEC Documents normal course of business consistent with past practices and not in excess of $50,000 in the aggregate.
(o) form, create or incurred organize any Subsidiary, other than in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)practice; or
(p) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would cause any condition set forth in Article VI to be unsatisfied.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- --------------------------------- generality of Section 7.015.1, except as set forth in Section 7.02 5.2 of the Company's Company Disclosure LetterSchedule, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by Parent, from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 3.12 of the Company Disclosure Schedule and in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any Commonly Controlled Entity; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany Commonly Controlled Entity;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for regular quarterly dividends on the Company Preferred Stock consistent with past practices (including as to declaration, record and payment dates), each such quarterly dividend in no event to exceed $0.0125 per share of Company Preferred Stock and dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the Company;
(c) except as provided by Section 6.14 hereof, redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock (including, without limitation, the Company Preferred Stock) of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any acquisition, purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement)) and the acceleration of such Options as contemplated in Sections 2.10 and 6.8;
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets inventories and supplies from suppliers or vendors in the ordinary course of business and consistent with past practicepractice and other than asset acquisitions which do not exceed $50,000 in any individual transaction or $100,000 in the aggregate);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiariessubsidiaries that are, individually or in the aggregate, material to the business of the Company and its subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) propose or adopt any amendments to its certificate articles of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 1998 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money (other than borrowings for working capital purposes under the Company's existing revolving credit facility disclosed on Section 3.17 of the Company Disclosure Schedule which aggregate borrowings shall not exceed $5,000,000 at any time), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material ContractContract described in Section 3.17;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice practice;
(m) take any of the actions set forth in Section 3.4 not otherwise specified herein;
(n) settle the terms of any material litigation affecting the Company or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial valueits subsidiaries;
(o) enter into make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(p) make or agree to make any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for capital expenditures other than capital expenditures which individually do not exceed $250,000 and which in the avoidance of doubt, aggregate do not exceed $500,000 and provided such are in accordance with the directors' and officers' liability insurance policies referred capital expenditure budget previously provided to in Section 7.11)Parent; or
(pq) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would make any representation or warranty of the Company in this Agreement or the Tender and Option Agreement untrue or incorrect in any material respect or cause any condition set forth in Annex A to occur or any condition in Article VII to be unsatisfied.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting Under the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure LetterMerger Agreement, the Company covenants and agrees has agreed that, except as expressly contemplated permitted by this the Merger Agreement or otherwise consented agreed to in writing by Parent, from the date of this the Merger Agreement until the Effective Time, it will not donot, and will not permit any of its Subsidiaries to dosubsidiaries to, make any material change in personnel, operations or finance, or do any of the following without the prior written consent of Parent: (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the following:Company to its parent, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any subsidiary of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities other than pursuant to the provisions of the Merger Agreement relating to Company Stock Options and the TIW Systems, Inc. Stock Bonus Plan; (ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any lien (A) any shares of its capital stock, (B) any voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or (D) any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than the issuance of Shares upon the exercise of Company Stock Options outstanding on the date of the Merger Agreement and in accordance with their present terms; (iii) amend the Company charter, the Company by-laws or other comparable charter or organizational
(aA) (i) increase the compensation payable to or to become payable grant to any officer or director of the Company or employeeany subsidiary of the Company any increase in compensation, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; practice or to the extent required under employment agreements filed as exhibits to documents filed by the Company with the SEC and publicly available prior to the date of the Merger Agreement (iithe "Filed Company SEC Documents"), (B) grant to any severance employee, officer or termination pay (other than pursuant to the normal severance policy or practice director of the Company or its Subsidiaries any subsidiary of the Company any increase in severance or termination pay, except to the extent required under any agreement filed as in effect on an exhibit to the date of this AgreementFiled Company SEC Documents, (C) toestablish, or adopt, enter into or amend in any material respect any employment or severance agreement withCompany benefit agreement, any employee; (iiiD) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law benefit plan or (ivE) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan Company benefit plan or Company benefit agreement, other than pursuant to the provisions of the Merger Agreement relating to Company or its Subsidiaries;
Stock Options and the TIW Systems, Inc. Stock Bonus Plan; (bvi) declare, set aside or pay any dividend on, or make any other distribution change in respect accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in generally accepted accounting principles; (whether in cashvii) sell, stock or propertylease (as lessor), outstanding shares license or otherwise dispose of capital stockor subject to any lien any properties or assets that are material, except for dividends by a wholly owned Subsidiary of individually or in the Company aggregate, to the Company and its subsidiaries, taken as a whole, except (A) sales of inventory and excess or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiaries;
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the obsolete assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) sales of inventories in the ordinary course of business and consistent with past practice and (iiiB) the licensing of software to customers consistent with past practice;
Satcom Sale; (hviii) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(iA) incur any indebtednessindebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any subsidiary of its Subsidiariesthe Company, guarantee any debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice practice, or (iiB) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company;
; (k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(lix) make or agree to make any new capital expenditure or expenditures other than that, individually, is in excess of $100,000 or, in the capital expenditures contemplated by the Company's annual operating plan for 1999aggregate, a copy are in excess of which has been furnished to Parent prior to the execution of this Agreement;
$300,000 in any calendar quarter; (mx) make or change any nonroutine Tax material tax election or settle or compromise any Tax material tax liability or refund;
; (ixi) (A) pay, discharge discharge, settle or satisfy any claims, liabilities liabilities, obligations or obligations litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated unaudited financial statements (or the notes thereto) of the Company included in for its fiscal year ended September 30, 1999 (the Filed SEC Documents "1999 Company Financial Statements") or incurred since the date of such financial statements in the ordinary course of business consistent with past practice or practice, (iiB) cancel any Material indebtedness (that is material, individually or in the aggregate) , to the Company and its subsidiaries taken as a whole, or waive any claims or rights of substantial value;
value or (oC) enter into any new agreements withwaive the benefits of, or commitments toagree to modify in any manner, insurance brokers any confidentiality, standstill or advisers extending beyond one year similar agreement to which the Company or extend any insurance policy beyond one year subsidiary of the Company is a party; (includingxii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the avoidance liquidation of doubtany subsidiary of the Company into the Company; (xiii) make or renew, extend, amend, modify, or waive any material provisions of any contract or commitment or relinquish or waive any material contract rights or agree to the directors' and officers' liability insurance policies referred termination of any material contract, except in the ordinary course of business consistent with prior practice; (xiv) institute, settle, or agree to in Section 7.11)settle any action or proceeding pending before any court or other governmental entity; or
or (pxv) authorize, or commit or agree in writing or otherwise to do take, any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Acquisition Agreement (Tripoint Global Communications Inc)
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.01, except as set forth in Section 7.02 of the Company's Disclosure Letter4.1, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentNewco (which consent will not unreasonably be withheld or delayed), from the date of this the Original Agreement until the Effective Time, it will shall not do, and will not permit any of its Subsidiaries to do, do any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries as in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided, however, that the Company may amend the Company Stock Option Plans or take other action to accelerate the vesting of any unvested Options that were issued and outstanding on the date of the Original Agreement and disclosed in Section 2.3 of the Company Disclosure Schedule; and may otherwise amend the Company Stock Option Plans (and option agreements entered into thereunder) to effectuate the purposes of Section 1.11 hereof;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries directly from any wholly owned Subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this the Original Agreement) of any existing Benefit Plan of the Company or any of its SubsidiariesCompany);
(d) except as provided in Sections 1.4 and 1.6 hereof, effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) except as provided in Sections 1.4 and 1.6 hereof, offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its SubsidiariesCompany, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance unitsunits (or increase the number of shares reserved for issuance under the Company Option Plans), other than issuances issuance of shares of Company Common Stock upon the exercise of the Company Stock Options issued and outstanding at as of the date of this the Original Agreement and disclosed in Section 2.3 of the Company Disclosure Statement in accordance with the terms thereof (as in effect on the date of this the Original Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices of the Company, except as may be required by a change in GAAP, or any change in Tax accounting;
(i) incur any indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in the Company or any direct or indirect wholly owned Subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;
(o) enter into any new agreements with, or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for the avoidance of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11); or
(p) agree in writing or otherwise to do any of the foregoing.any
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- --------------------------------- generality of Section 7.015.1, except as set forth in Section 7.02 5.2 of the Company's Company -------------------------- Disclosure LetterSchedule, the Company covenants and agrees that, except as expressly ------------------- contemplated by this Agreement or otherwise consented to in writing by ParentParent (which consent shall not be unreasonably withheld or delayed), from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 3.12 of the Company Disclosure Schedule and in effect on the date of ----------------------------------------------- this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or any Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any Commonly Controlled Entity; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany Commonly Controlled Entity; provided that the Company may amend the Company Stock Option -------- ---- Plans to accelerate the vesting of any unvested Options and to permit employees and directors to tender any shares acquired upon exercise of any Option into the Offer in accordance with the terms of this Agreement;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for (i) dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the CompanyCompany and (ii) regular quarterly cash dividends by the Company consistent with past practices (including as to declaration, record and payment dates) in no event to exceed $0.05 per Share per fiscal quarter;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement);
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options and Warrants outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiariessubsidiaries that are, individually or in the aggregate, material to the business of the Company and its subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) propose or adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 1998 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(j) (i) incur any indebtednessindebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial valuepractice;
(ol) enter into settle the terms of any material litigation affecting the Company or any of its subsidiaries;
(m) make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(n) make or agree to make any new agreements withcapital expenditures which individually are in excess of $1,000,000 or which in the aggregate are in excess of $3,000,000 except in accordance with the Company's budget, or commitments todated August 31, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including1999, for the avoidance of doubt, the directors' and officers' liability insurance policies referred previously furnished to in Section 7.11)Parent; or
(po) agree in writing or otherwise to do take any of the foregoingforegoing actions or any action which would make any representation or warranty in this Agreement untrue or incorrect or cause any condition set forth in Annex A to occur or any condition in Article VII to be unsatisfied.
Appears in 1 contract
Prohibited Actions by the Company. Without limiting the ---------------------------------- generality of Section 7.015.1, except as set forth in Section 7.02 5.2 of the Company's Company Disclosure LetterSchedule, the Company covenants and agrees that, except as expressly contemplated by this Agreement or otherwise consented to in writing by ParentParent (which consent shall not be unreasonably withheld or delayed), from the date of this Agreement until the Effective Time, it will not do, and will not permit any of its Subsidiaries subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to become payable to any director or employee, except for increases in salary or wages of employees in the ordinary course of business and consistent with past 38 practice; (ii) grant any severance or termination pay (other than pursuant to the normal severance policy or practice of the Company or its Subsidiaries subsidiaries as disclosed in Section 3.11(a) of the Company Disclosure Schedule and in effect on the date of this Agreement) to, or enter into or amend in any material respect any employment or severance agreement with, any employee; (iii) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or any Benefit Plan of the Company or its Subsidiaries except as required by applicable Law any ERISA Affiliate; or (iv) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of business consistent with past practice, under any collective bargaining agreement or Benefit Plan of the Company or its Subsidiariesany ERISA Affiliate; provided that the Company shall adopt appropriate resolutions and take all other actions necessary to provide that each outstanding Option granted under the Stock Option Plans, whether or not vested or exercisable, shall, at or immediately prior to the Effective Time, be canceled, and each holder thereof shall be entitled to receive a Cash Payment, upon cancellation equal to the product of (x) the total number of Shares subject or related to such Option, whether or not then vested or exercisable, and (y) the excess, if any, of the Merger Consideration over the exercise price or purchase price, as the case may be, per outstanding Option;
(b) declare, set aside or pay any dividend on, or make any other distribution in respect of (whether in cash, stock or property), outstanding shares of capital stock, except for dividends by a wholly owned Subsidiary subsidiary of the Company to the Company or another wholly owned Subsidiary subsidiary of the Company;
(c) redeem, purchase or otherwise acquire, or offer or propose to redeem, purchase or otherwise acquire, any outstanding shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries (other than (i) any such acquisition by the Company or any of its wholly owned Subsidiaries subsidiaries directly from any wholly owned Subsidiary subsidiary of the Company in exchange for capital contributions or loans to such Subsidiary subsidiary, or (ii) any purchase, forfeiture or retirement of shares of Company Common Stock or the Company Stock Options occurring pursuant to the terms (as in effect on the date of this Agreement) of any existing Benefit Plan of the Company or any of its Subsidiariessubsidiaries, in a manner otherwise consistent with the terms of this Agreement;
(d) effect any reorganization or recapitalization; or split, combine or reclassify any of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize or propose the offering, sale, issuance or grant of, any shares of capital stock of, or other equity interests in, any securities convertible into or exchangeable for (or accelerate any right to convert or exchange securities for) any shares of capital stock of, or other equity interests interest in, or any options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any Voting Company Debt or other voting securities of, the Company or any of its Subsidiariessubsidiaries, or any "phantom" stock, "phantom" stock rights, stock appreciation rights SARs or stock-based performance units, other than issuances of shares of Company Common Stock upon the exercise of the Company Stock Options outstanding at the date of this Agreement in accordance with the terms thereof (as in effect on the date of this Agreement);
(f) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets of any other Person person (other than the purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
(g) sell, lease, exchange or otherwise dispose of, or grant any Lien with respect to, any of the properties or assets (including technological assets) of the Company or any of its Subsidiariessubsidiaries that are, individually or in the aggregate, material to the business of the Company and its subsidiaries, except for (i) dispositions of excess or obsolete assets, (ii) assets and sales of inventories in the ordinary course of business and consistent with past practice and (iii) the licensing of software to customers consistent with past practice;
(h) propose or adopt any amendments to its certificate of incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or practices in effect as of December 31, 1998 affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required by a change in GAAP, or any change in Tax accountinggenerally accepted accounting principles;
(i) incur any indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiariessubsidiaries, guarantee any such indebtedness or debt securities of another Personperson, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings pursuant to existing lines of credit incurred in the ordinary course of business consistent with past practice or (ii) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to or in the Company or any direct or indirect wholly owned Subsidiary subsidiary of the Company; provided, however, nothing shall limit the Company's right to borrow pursuant to its revolving credit agreement in the ordinary course of business;
(k) enter into any contract which, if such contract is entered into, would be a Material Contract;
(l) make or agree to make any new capital expenditure or expenditures other than the capital expenditures contemplated by the Company's annual operating plan for 1999, a copy of which has been furnished to Parent prior to the execution of this Agreement;
(m) make any nonroutine Tax election or settle or compromise any Tax liability or refund;
(i) pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice or (ii) cancel any Material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial valuepractice;
(ol) enter into make any Tax election except in a manner consistent with past practice, change any method of accounting for Tax purposes, or settle or compromise any material Tax liability;
(m) make or agree to make any new agreements with, capital expenditures which individually are in excess of $500,000 or commitments to, insurance brokers or advisers extending beyond one year or extend any insurance policy beyond one year (including, for which in the avoidance aggregate are in excess of doubt, the directors' and officers' liability insurance policies referred to in Section 7.11)$2,000,000; or
(pn) agree in writing or otherwise to do take any of the foregoingforegoing actions.
Appears in 1 contract
