Specific Activities. During the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section 6.2 of the Company Disclosure Schedule, (iii) as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to: (a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries); (b) (i) declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (iv) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (c) issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of Company Ordinary Shares upon exercise of Company Warrant awards outstanding on the date of this Agreement, conversion of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company Warrant, Company Preferred Shares or Company Options;
Appears in 2 contracts
Samples: Merger Agreement (Tti Team Telecom International LTD), Merger Agreement (Tti Team Telecom International LTD)
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) in connection with any activity permitted to be taken by the Company pursuant to Section 6.5(a), as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries);
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (ivvi) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) Except for transactions among the Company and its wholly-owned Subsidiaries or the Company’s wholly-owned Subsidiaries, issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of restricted shares pursuant to a Company Ordinary Shares upon exercise of Employee Plan which has been properly approved by the Company Warrant awards outstanding on prior to the date of this Agreement, conversion Agreement or the issuance of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Share Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantShare Options;
(d) acquire or agree to acquire any material assets (including securities) or merge or consolidate, with any Person or engage in any similar transaction or make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts reflected in the Company’s budget for 2007 provided to Purchaser or permitted by Section 6.2(i) below;
(e) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course, or adopt a plan of merger, consolidation, restructuring or other reorganization;
(f) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any “keep-well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business pursuant to credit agreements or facilities in existence on the date hereof;
(g) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(h) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(i) make or agree to make any capital expenditures in excess of the amount contemplated by the Company’s 2007 budget other than capital expenditures that do not exceed $1,000,000 in the aggregate;
(j) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or to propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involves non-monetary relief that would materially restrict the operations of the Company or (ii) requires the payment of amounts after the Closing in excess of $1,000,000 in the aggregate;
(k) (i) modify or amend in any material respect any credit agreement or facility or (ii) modify or amend in any material respect or terminate any other material Contract outside of the ordinary course of business;
(l) except (1) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (2) as otherwise required by Law, or (3) as provided pursuant to existing Employment Agreement or other Contracts in effect on the date hereof, (i) increase the compensation or benefits of any director, officer or employee, except for, in the cases on non-officer employees, increases in the ordinary course that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year), (ii) adopt or amend in any material respect any Company OptionsEmployee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (iii) enter into or amend or modify any employment, consulting, severance, termination or similar agreement with any director, officer or employee, (iv) accelerate the payment of compensation or benefits to any director, officer or employee, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Plan or compensation agreement or arrangements, or (vi) take any action that could give rise to severance benefits payable to any officer, director, or employee of the Company or any of its Subsidiaries as a result of the consummation of the Merger or the other Transactions;
(m) make any material change in accounting methods, principles or practices, except (i) as required by GAAP, Regulation S-X of the Exchange Act or as required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) as required by change in applicable Legal Requirements;
(n) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(o) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with or to the sale or distribution of any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company: (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights which are material to the Company or any of its Subsidiaries; or (ii) enter into any agreement limiting in any material respect the right of the Surviving Corporation or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(p) enter into any material Contract or series of related Contracts that (i) are not in the ordinary course of business, and (ii) pursuant to which the Company or any Subsidiary undertakes to assume any liability or undertaking in excess of $1,000,000 in the aggregate (except as expressly permitted under other provisions of this Agreement); or
(q) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Eci Telecom LTD/)
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) in connection with any activity permitted to be taken by the Company pursuant to Section 6.5(a), as required by applicable Legal Requirements, including GAAP, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or (v) as required in order to comply with Section 6.1 above, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries);
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company's wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stock, (ii) adopt a plan of complete or partial liquidation or a resolution providing for or authorizing such liquidation, (iii) split, combine or reclassify any of its capital stock or (ivvi) repurchase, redeem or otherwise acquire any shares of capital stock, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) Except for transactions among the Company and its wholly-owned Subsidiaries or the Company's wholly-owned Subsidiaries, issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein other than the issuance of restricted shares pursuant to a Company Ordinary Shares upon exercise of Employee Plan which has been properly approved by the Company Warrant awards outstanding on prior to the date of this Agreement, conversion Agreement or the issuance of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Share Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantShare Options;
(d) acquire or agree to acquire any material assets (including securities) or merge or consolidate, with any Person or engage in any similar transaction or make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts reflected in the Company's budget for 2007 provided to Purchaser or permitted by Section 6.2(i) below;
(e) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course, or adopt a plan of merger, consolidation, restructuring or other reorganization;
(f) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any "keep-well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business pursuant to credit agreements or facilities in existence on the date hereof;
(g) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(h) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(i) make or agree to make any capital expenditures in excess of the amount contemplated by the Company's 2007 budget other than capital expenditures that do not exceed $1,000,000 in the aggregate;
(j) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or to propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involves non-monetary relief that would materially restrict the operations of the Company or (ii) requires the payment of amounts after the Closing in excess of $1,000,000 in the aggregate;
(i) modify or amend in any material respect any credit agreement or facility or (ii) modify or amend in any material respect or terminate any other material Contract outside of the ordinary course of business;
(l) except (1) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (2) as otherwise required by Law, or (3) as provided pursuant to existing Employment Agreement or other Contracts in effect on the date hereof, (i) increase the compensation or benefits of any director, officer or employee, except for, in the cases on non-officer employees, increases in the ordinary course that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year), (ii) adopt or amend in any material respect any Company OptionsEmployee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (iii) enter into or amend or modify any employment, consulting, severance, termination or similar agreement with any director, officer or employee, (iv) accelerate the payment of compensation or benefits to any director, officer or employee, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Plan or compensation agreement or arrangements, or (vi) take any action that could give rise to severance benefits payable to any officer, director, or employee of the Company or any of its Subsidiaries as a result of the consummation of the Merger or the other Transactions;
(m) make any material change in accounting methods, principles or practices, except (i) as required by GAAP, Regulation S-X of the Exchange Act or as required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) as required by change in applicable Legal Requirements;
(n) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(o) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with or to the sale or distribution of any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company: (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights which are material to the Company or any of its Subsidiaries; or (ii) enter into any agreement limiting in any material respect the right of the Surviving Corporation or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(p) enter into any material Contract or series of related Contracts that (i) are not in the ordinary course of business, and (ii) pursuant to which the Company or any Subsidiary undertakes to assume any liability or undertaking in excess of $1,000,000 in the aggregate (except as expressly permitted under other provisions of this Agreement); or
(q) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Eci Telecom LTD/)
Specific Activities. During Without limiting the generality of Section 6.1, during the period from the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section Section 6.2 of the Company Disclosure Schedule, (iii) Schedule and as required by applicable Legal Requirements, including GAAPLaw, or required by any Governmental Authority or the Financial Accounting Standards Board (or similar organization having authority over the Company), (iv) as consented to in writing by Parent the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), or provided that the Purchaser shall be deemed to have consented if the Purchaser does not object within three (v3) as required Business Days in order Los Angeles, California, after a request for such consent is delivered by the Company to comply with the individuals set forth in Section 6.1 above6.2 of the Purchaser Disclosure Schedule), the Company shall not, and shall not permit any of its Subsidiaries to:
(a) cause, permit or propose any amendments to the Company Charter Documents (or similar governing instruments of any of its Subsidiaries)Documents;
(b) (i) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, declare or pay any dividends on or make other distributions in respect of any of its respective capital stockshare capital, (ii) adopt a plan of complete or partial liquidation or reorganization, or a resolution providing for or authorizing such liquidationliquidation or reorganization, (iii) split, combine or reclassify any of its capital stock shares or any other security or interest therein, or (iv) repurchase, redeem or otherwise acquire any shares of capital stockshares, or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than the acquisition of restricted shares upon forfeiture thereof;
(c) issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or Encumbrance of, any shares of its capital stock or any other security or interest therein therein, including any rights, warrants or options to purchase any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of capital stock other than the issuance of Company Ordinary Shares upon exercise of Company Warrant awards outstanding on the date of this Agreement, conversion of Company Preferred Shares outstanding on the date of this Agreement, or upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with the existing terms of such Company WarrantStock Options or upon conversion of the Company’s convertible notes;
(d) acquire or agree to acquire any material assets of (including securities), or merge or consolidate with, any Person or engage in any similar transaction;
(e) make any loans, advances or capital contributions to, or investments in, any other Person outside of the ordinary course of business consistent with past practice other than any amounts expressly reflected in the Company’s budgets for 2007and 2008 provided to the Purchaser;
(f) sell, lease, license, pledge, encumber or otherwise dispose of any of its material assets or any interest therein, other than in the ordinary course of business consistent with past practice;
(g) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness, guarantee any debt of others, enter into any “keep-well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for working capital borrowings incurred in the ordinary course of business consistent with past practice pursuant to credit agreements or facilities in existence on the date hereof;
(h) make or rescind any material Tax election, or agree to pay, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes, or request, negotiate or agree to any Tax rulings, or Tax sharing arrangement or agreement (except as provided herein);
(i) amend, in any material respect, any Tax return, change an annual Tax accounting period, adopt or change any material Tax accounting method (except as required by applicable Law or, solely with respect to accounting periods or methods, as required by GAAP) or execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any material Taxes;
(j) make or agree to make any capital expenditures in excess of the amount contemplated by the Company’s budgets for 2007 or 2008 provided to the Purchaser;
(k) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or propose to pay, discharge, settle or satisfy such claims, liabilities or obligations, in each case outside of the ordinary course of business that (i) involve non-monetary relief that would materially restrict the operations of the Company, or (ii) requires the payment of amounts after the Closing in excess of $500,000 individually;
(l) (i) modify or amend in any material respect any credit agreement or facility, or (ii) modify or amend in any material respect or terminate any Company Contract or any other Contract that is material to the Company and its Subsidiaries, taken as a whole;
(m) terminate or otherwise discontinue the services without cause of the Company’s and its Subsidiaries current officers and key employees who are integral to the operation of their businesses as presently conducted;
(n) except (i) as required pursuant to existing written agreements in effect on the date hereof, Company Preferred Shares Employee Plans in effect as of the date hereof, or written agreements for newly hired employees or extensions of employment agreements (on substantially similar terms as in effect on the date hereof), all in the ordinary course of business consistent with past practice, (ii) as otherwise required by Law, (iii) as provided pursuant to existing Employment Agreements or in compensation committee directives in effect on the date hereof, or (iv) as set forth in Section 6.2 of the Company OptionsDisclosure Schedule, (A) increase the compensation or benefits of any director, officer or employee, except for, in the cases of non-officer employees, increases in the ordinary course of business that are consistent with past practice (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year and changes relating to positions or title), (B) adopt or amend in any material respect any Company Employee Plan (any such amendment being required to comply in all respects with the other provisions of this Section 6.2), (C) amend or modify in any material respect any Employment Agreement or enter into any Employment Agreement with an Employee providing for compensation and benefits in excess of $200,000 per year;
(o) make any material change in accounting methods, principles or practices, except as required (i) by GAAP, Regulation S-X of the Exchange Act, any Governmental Authority or the Financial Accounting Standards Board (or similar organization), or (ii) by change in applicable Law;
(p) enter into any transaction with any of its Affiliates other than pursuant to arrangements in effect on the date hereof or in connection with transactions between or among the Company and wholly-owned Subsidiaries or Affiliates of the Company controlled by the Company;
(q) transfer or license to any Person (other than with respect to inter-company transactions) or otherwise extend, amend or modify in any material respect, any material rights of such other Person or entity to Company Intellectual Property Rights, or enter into any agreements or make other commitments or arrangements to grant, transfer or license, to any Person future patent right, in each case other than non-exclusive licenses the granting of which are advisable in connection with, or to the sale or distribution of, any product by the Company or any of its Subsidiaries, in each case in the ordinary course of business consistent with past practice; provided that in no event shall the Company or any Subsidiary of the Company (i) license on an exclusive basis (other than supply and distribution agreements in the ordinary course of business consistent with past practice) or sell any Company Intellectual Property Rights that are material to the Company or any of its Subsidiaries, or (ii) enter into any agreement limiting in any material respect the right of the Surviving Company or any of its Subsidiaries to engage in any line of business or to compete with any Person;
(r) enter into any Company Contract or series of related Contracts outside the ordinary course of business (except as expressly permitted under other provisions of this Agreement); or
(s) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
