Conduct of Business by Parent. During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned): (i) (1) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests; (ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof; (iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock; (iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent; (v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or (vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or (vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
Appears in 3 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Pioneer Energy Services Corp)
Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shallshall not, and shall cause each of its Subsidiaries not permit Sub to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality do any of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):of the Company:
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock (in the case of Parent) or other equity interestsmembership interests (in the case of Sub), except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock (in the case of Parent) or other equity or voting interests, membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock (in the case of Parent) or other equity or voting interests;
membership interests (iiin the case of Sub), (C) purchase, redeem, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other equity securities of Parent thereof or any securities convertible into rights, warrants or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights options to acquire any such shares or other equity securities, other than securities or (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(ivD) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuringmerger, recapitalization consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other than such transactions among wholly-owned Subsidiaries fashion the corporate structure or ownership of ParentParent or Sub;
(vii) except as required issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by GAAPmerging or consolidating with, change its fiscal yearor by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any material changes determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in financial accounting methods, principlesprinciples or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, 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, or practices(B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(vixiii) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) take, authorize any of, or commit, resolve commit or agree to take any of, the foregoing actions.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Millstream Acquisition Corp), Agreement and Plan of Merger (GRH Holdings, L.L.C.), Agreement and Plan of Merger (RGGPLS Holding, Inc.)
Conduct of Business by Parent. Pending the Merger. During the period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, except as consented to in writing in advance by Parent covenants and agrees that, unless the Company or as shall otherwise specifically required by this Agreement or Lawagree in writing, Parent shall, and shall cause each of its Subsidiaries to, carry on conduct its business in the ordinary course of business and consistent with past practice. In addition practice and shall not directly or indirectly do, or propose to and without limiting the generality do, any of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent of the Company:
(such consent not to be unreasonably withheld, delayed a) amend or conditioned):otherwise change Parent's Articles of Incorporation or By-Laws;
(i) (1) declare, set aside aside, make or pay any dividends on, dividend or make any other distributions distribution (whether in cash, stock or propertyproperty or any combination thereof) in respect of, of any of its capital stock; or (ii) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class or other equity interestsproperty or assets whether pursuant to any rights agreement, except for the payment by stock option plans or otherwise, provided that Parent of quarterly cash dividends on may issue shares of Parent Common Stock pursuant to currently outstanding options or employee stock purchases referred to on the Parent Schedule in response to Section 3.2 above and Parent may issue options pursuant to its 1998 Equity Compensation Plan in amounts and on terms consistent with customary declarationpast practice, record and payment dates provided that such option grants do not exceed 50,000 shares in accordance with Parent’s current dividend policythe aggregate;
(c) acquire or agree to acquire, by merging or (2) splitconsolidating with, combine, by purchasing an equity interest in or reclassify any a portion of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu the assets of, or in substitution for shares of its capital stock by any other manner, any business or any corporation, partnership, association or other equity business organization or voting interests;
(ii) purchase, redeemdivision thereof, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights agree to acquire any assets of any other person, or dispose of any assets, which, in any such shares case, would materially delay or prevent the consummation of the Merger and the other equity securities, other than transactions contemplated by this Agreement; or
(1d) take any action to change its accounting policies or procedures except as required by a change in GAAP occurring after the acquisition by Parent of shares of Parent Common Stock date hereof; or
(e) take or agree in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order writing or otherwise to pay the exercise price thereoftake, (2i) any of the withholding actions described in this Section 4.2; (ii) any action which would make any of shares of Parent Common Stock to satisfy tax obligations Parent's representations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit planswarranties in this Agreement, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards if made on and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
of such action or agreement, untrue or incorrect in any material respect; (iii) amend or otherwise changeany action which could prevent it from performing, or authorize or propose cause it not to amend or otherwise changeperform, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by obligations under this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
Agreement; (iv) adopt any action that would cause the Merger not to be treated as a reorganization within the meaning of Section 368(a) of the Code; or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (that would prevent or omit to take any action) if such action (or omission) would reasonably be expected to result in any impede the Merger from qualifying as a "pooling of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actionsinterests" for accounting purposes.
Appears in 2 contracts
Sources: Merger Agreement (Noodle Kidoodle Inc), Merger Agreement (Zany Brainy Inc)
Conduct of Business by Parent. During the period from The Parent covenants and agrees as to itself and its Subsidiaries that, after the date of this Agreement hereof and prior to the Effective Time, Time except as consented to in writing in advance required by the Company applicable Laws or as otherwise specifically required by provided in this Agreement or LawAgreement, Parent shall, and shall cause each of Parent and its Subsidiaries to, carry on shall conduct its business in the ordinary course of business consistent with past practicepractice and shall use reasonable efforts to preserve intact its business organization and relationships with third parties and to keep available the services of its present officers and employees. In addition to and without Without limiting the generality of the foregoingforegoing except (A) as otherwise expressly permitted by this Agreement, during (B) as the period from the date of this Agreement Company may approve in writing (such approval not to the Effective Time, except be unreasonably withheld or delayed) or (C) as set forth in Section 5.1(b) 6.2 of the Parent Disclosure Letter or as specifically required by this Agreement or LawLetter, neither Parent shall not nor any of its subsidiaries, without the Company’s prior written consent (such consent not to be unreasonably withheldapproval of the Company, delayed or conditioned):will:
(ia) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments;
(1b) merge or consolidate Parent or any of its Subsidiaries with any other Person, or, except to the extent publicly announced and completed at least two trading days prior to the beginning of the Measurement Period, restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(c) other than in accordance with the Parent Stock Plans, issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Parent or any its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(d) declare, set aside aside, make or pay any dividends ondividend or other distribution, or make any other distributions (whether payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or propertyindirect wholly-owned Subsidiary to the Parent or to any other direct or indirect wholly-owned Subsidiary) in or enter into any agreement with respect ofto the voting of its capital stock;
(e) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other equity interests, except securities convertible or exchangeable into or exercisable for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsstock, except in accordance with cashless exercise provisions of rights granted prior to the date hereof under the Parent Stock Plans;
(iif) purchasemake any changes with respect to accounting policies or procedures, redeemexcept as required to comply with, or to comply with changes in, GAAP;
(g) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise acquire dispose of any shares assets, product lines or businesses of the Parent or its Subsidiaries, including capital stock of any of its Subsidiaries, except for sales or any other equity securities rental of Parent or any securities convertible into or exchangeable for such shares inventory in the ordinary course of capital stock business, sales of obsolete assets and sales, leases, licenses or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securitiesdispositions of assets with a fair market value not in excess of $5,000,000 in the aggregate, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plansContracts in effect prior to the date of this Agreement, (3) or transactions publicly announced and consummated at least two trading days prior to the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as beginning of the date hereofMeasurement Period;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vih) take any action (or omit to take any action) if such action (or omission) would that is reasonably be expected likely to result in any of the conditions to the Mergers Merger set forth in Article VI VII not being satisfied satisfied;
(i) take any action that (without regard to any action taken or agreed to be taken by the Outside DateCompany or any of its affiliates) would prevent the Merger from qualifying as a reorganization within the meaning of Sections 368(a) of the Code; or
(viij) authorize agree, authorize, seek approval for or commit to do any of, or commit, resolve or agree to take any of, of the foregoing actionsforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies Inc)
Conduct of Business by Parent. During the period The Parent covenants and agrees that, from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries Merger Sub to, carry on its conduct their business in the usual, regular and ordinary course of business consistent with past practicein substantially the same manner as previously conducted. In addition to addition, and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) Parent shall not, and shall not permit Merger Sub to, do any of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent of the Company (such which consent shall not to be unreasonably withheld, delayed withheld or conditioneddelayed):
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interestsstock, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock or other equity or voting interests;
stock, (iiC) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent thereof or any securities convertible into rights, warrants or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights options to acquire any such shares or other equity securities, other than securities or (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(ivD) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuringmerger, recapitalization consolidation, recapitalization, or other reorganization of, or alter through merger, liquidation, reorganization or restructuring or in any other fashion its corporate structure;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock, (B) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares of its capital stock, or (C) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent Bylaws or the comparable organizational documents of Merger Sub, other than as contemplated herein;
(iv) sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or subject any lien on, any of its assets (including any Parent Intellectual Property) other than (A) in the ordinary course of business consistent with past practice, but in no event shall such transactions among wholly-owned Subsidiaries dispositions exceed $50,000 individually or $100,000 in the aggregate, or (B) pursuant to the terms of Parentcontracts entered into as of the date of this Agreement, which shall be disclosed on the Parent Disclosure Letter;
(v) enter into or amend any contract, transaction, indebtedness or other arrangement in which any of its directors or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest;
(vi) (A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union, or (E) make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vii) make any change in accounting methods, principles or practices affecting its reported consolidated assets, liabilities or results of operations, except insofar as may have been required by a change in GAAP;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, change its fiscal yearissue or sell any debt securities or warrants or other rights to acquire any debt securities, 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, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any material changes in financial accounting methodsTax election, principlessettle or compromise any material Tax liability or refund or file any amended Tax Return;
(xi) enter into any transaction with, or practicesenter into any agreement, arrangement or understanding with any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-B; or
(vixii) take any action (take, authorize or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Sand Hill It Security Acquisition Corp), Merger Agreement (Sand Hill It Security Acquisition Corp)
Conduct of Business by Parent. During Except as expressly permitted by this Agreement or as required by applicable Law, during the period from the date of this Agreement to until the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on (x) conduct its business in the ordinary course of business consistent with past practicepractice and (y) use commercially reasonable efforts to maintain and preserve intact its business organization and its goodwill and relationships with third parties and employees. In addition to and without Without limiting the generality of the foregoing, Parent agrees that, during the period from the date of this Agreement to until the Effective Time, except as expressly contemplated or permitted by this Agreement, set forth in Section 5.1(b) of the Parent Company Disclosure Letter Schedule or as specifically required by this Agreement or applicable Law, Parent shall and except as may be consented to in writing by the Company (which consent may not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed conditioned or conditioned):delayed), Parent shall not, and shall not permit any of its Subsidiaries to:
(i) (1) declare, set aside amend or pay any dividends on, modify the memorandum of association or make any other distributions (whether in cash, stock or property) in respect of, any bye-laws of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization recapitalization, merger, consolidation, share exchange or other reorganization (other than such transactions among wholly-exclusively between Parent and its wholly owned Subsidiaries or between wholly owned Subsidiaries of Parent);
(iii) split, combine, subdivide or reclassify any shares of its capital stock (other than transactions exclusively between Parent and its wholly owned Subsidiaries or between wholly owned Subsidiaries of Parent);
(iv) declare, set aside for payment or pay any dividend on, or make any other distribution in respect of, the Parent Common Shares, or otherwise make any payments or distributions to the Parent shareholders in their capacity as such, other than regular quarterly cash dividends by Parent consistent with past practice;
(v) redeem, purchase or otherwise acquire any of its outstanding shares of capital stock or any rights to acquire shares of its capital stock, except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; orconnection with tax withholding upon settlement of awards under the Parent Stock Plans;
(vi) take directly or indirectly acquire (including by purchasing all or a substantial equity interest in) any action (other Person or omit to take division, business, assets or equity interests of any action) if other Person where such action (or omission) acquisition would reasonably be expected to result in any materially delay completion of the conditions to Merger and the Mergers set forth in Article VI not being satisfied by the Outside Dateother transactions contemplated hereby; or
(vii) authorize any of, or commit, resolve or agree to take or authorize any of, of the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Hilb Rogal & Hobbs Co), Merger Agreement (Willis Group Holdings LTD)
Conduct of Business by Parent. During the period from the date of this Agreement to the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Section 8.1 hereof, except as consented disclosed in Section 5.2 of the Parent Disclosure Schedule and except as contemplated by this Agreement, or to in writing in advance by the extent that the Company or as shall otherwise specifically required by this Agreement or Lawconsent in writing, Parent shall, and shall cause each Subsidiary of its Subsidiaries to, Parent to carry on its business their respective businesses in the usual, regular and ordinary course of business consistent with past practicegood business judgment, and use their commercially reasonable efforts to preserve intact their present business organizations, goodwill, ongoing businesses and relationships with third parties, and to maintain the status of Parent as a REIT within the meaning of Section 856 of the Code. In addition to and without Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the Partnership Merger Effective TimeTime and the termination of this Agreement in accordance with Section 8.1 hereof, except as set forth disclosed in Section 5.1(b) 5.2 of the Parent Disclosure Letter Schedule, as contemplated by any Parent employee or executive benefit or compensation plan, however characterized, as required by existing agreements, or as specifically required by Parent’s or its Affiliates’ duties to joint venture partners or minority stockholders of any Parent Affiliate, neither Parent nor any of the Subsidiaries of Parent will (except as contemplated by this Agreement Agreement, or Lawto the extent that the Company shall otherwise consent in writing, Parent which consent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed):
(a) (i) split, combine or reclassify any equity securities or other interests of Parent or any Subsidiary of Parent or partnership interests of Parent OP or issue or authorize for issuance any securities in respect of, in lieu of or in substitution for such securities, other interests or partnership interests, (1ii) declare, set aside or pay any dividends on, dividend or make any other distributions distribution (whether in cash, stock stock, or propertyproperty or any combination thereof) in respect of, of any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any Subsidiary of Parent, except for (A) the regular, cash dividend at a rate not in excess of $0.63 per share of Parent Common Stock, (B) corresponding distributions payable to the holders of partnership units in Parent OP, (C) dividends or distributions, declared, set aside or paid by any wholly-owned Subsidiary of Parent to Parent or any Subsidiary of Parent that is, directly or indirectly, wholly-owned by Parent, and (D) any dividends or distributions to the extent required to maintain Parent’s status as a REIT or to eliminate any U.S. federal income Taxes or excise Taxes otherwise payable, provided, that any such dividends or distributions can be made by Parent at any time in its sole discretion in accordance with applicable Law; provided further, that the record date for Parent’s first dividend in 2008 shall not be prior to the Effective Time;
(i) classify or re-classify any unissued Parent Common Stock, shares of stock, units, interests, any other voting or redeemable securities convertible into (including partnership interests) or exchangeable stock-based performance units of the Parent or any Subsidiary of Parent, (ii) authorize for such issuance, issue, deliver, sell, grant or agree or commit to issue, deliver, sell or grant or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock (or similar interest) of any class or any other equity securities or units, interests, equity equivalents, any optionsother voting or redeemable securities (including, warrantswithout limitation, callsshare appreciation rights, “phantom” stock plans, stock based performance units or stock equivalents), or rights to acquire any securities convertible into any such shares shares, securities, units, interests, equity equivalents, voting securities or other equity convertible or redeemable securities, other than the (1A) issuance of shares of Parent Common Stock upon the exercise of stock options of Parent (“Parent Stock Options”) or upon the vesting or settlement of other stock-based awards outstanding on the date of this Agreement or issued in after the date hereof in accordance with this Agreement, (B) issuances for cash in an underwritten public offering that are permitted by Section 5.2(b) of the Parent Disclosure Schedule, (C) issuances of Parent OP Units to purchase assets or upon the exchange of LTIP Units (as defined in the Parent OP Partnership Agreement), (D) issuances of awards under Parent’s options plans in the ordinary course of business or (E) issuances of shares of Parent Common Stock upon the exchange of Parent OP Units, including Parent OP Units issuable upon exchange of LTIP Units (as defined in the Parent OP Partnership Agreement), or (iii) repurchase, redeem or otherwise acquire any securities or equity equivalents (including, without limitation, share appreciation rights, “phantom” stock plans or stock equivalents) of Parent or any of the Subsidiaries of Parent except the acquisition by Parent of shares of Parent Common Stock in connection with satisfaction of (A) the surrender of shares of Parent Common Stock by holders exercise price of Parent Stock Options in order to pay or (B) withholding obligations upon the exercise price thereof, (2) the withholding of shares of a Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofOption;
(c) (i) merge, consolidate or enter into any other business combination transaction with any Person, (ii) acquire (by merger, consolidation or acquisition) any corporation, partnership or other entity or (iii) amend or otherwise changepurchase any controlling equity interest in, or authorize all or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation substantially all of the transactions contemplated by this Agreement assets of, any Person that has a class of securities subject to the reporting obligations of the Exchange Act;
(d) except to the extent required or adversely affect advisable to comply with its obligations hereunder or with applicable law, amend in any material respect the rights Parent Articles or Parent Bylaws, limited partnership or limited liability company agreements, or similar organizational or governance documents of holders Parent, other than as required in connection with the issuances of Parent capital stock (including preferred stock) in an underwritten cash offering;
(e) subject to Section 6.5, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization (other than the Mergers) of Parent or any of the Parent Subsidiaries;
(f) amend in any respect any term of any Parent Common Stock;
(ivg) adopt take any action or enter into fail to take any action, which could reasonably be expected to cause Parent to fail to qualify as a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practicesREIT; or
(vih) take any action (enter into an agreement or omit otherwise make a commitment to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (American Financial Realty Trust), Merger Agreement (Gramercy Capital Corp)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not knowingly take any action a principal purpose of which is, and the reasonably likely result of which would be, a material delay in or interference with the consummation of the Merger. Neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Company, except as consented to in writing in advance by the Company a result of entering into or as otherwise specifically required contemplated by this Agreement or Lawexcept as set forth in Section 6.09 of the Parent Disclosure Schedule:
(a) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of, (i) more than outstanding 20% of the shares of capital stock of Parent shallor any shares of capital stock of a Parent Subsidiary of any class, or securities convertible into or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire more than 20% of the outstanding shares of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary, other than the issuance of shares of Parent common stock pursuant to the exercise of stock options granted pursuant to the Parent Stock Plans, or (ii) any material property or material assets of Parent or any Parent Subsidiary, except providing products and shall cause each of its Subsidiaries to, carry on its business services in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):;
(i) an acquisition (1including, without limitation, by merger, consolidation, or acquisition of stock or assets) of any interest in any corporation, partnership, other business organization or person or any division thereof which would be considered a "Significant Subsidiary" of the Parent (after taking into effect the Merger); (ii) except in connection with an acquisition permitted pursuant to the foregoing clause (i), incur any material indebtedness for borrowed money or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person which are material to the Parent (other than Parent and Parent Subsidiaries) for borrowed money or make any loans or advances, material to the business, assets, liabilities, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, other than borrowings under the Parent's credit facility for use in operating the business; or (iii) enter into or amend any contract, agreement, commitment or arrangement in which the Parent is obligated to perform and, if fully performed, would not be permitted under this Section 6.09(c);
(d) declare, set aside aside, make or pay any dividends ondividend or other distribution, or make any other distributions (whether payable in cash, stock stock, property or property) in otherwise, with respect of, to any of its capital stock or other equity interestsstock, except for the payment by that any Parent of quarterly cash Subsidiary may pay dividends on shares of or make other distributions to Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or any other Parent Subsidiary;
(2e) splitreclassify, combine, split or reclassify subdivide any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsstock;
(iif) purchaseamend or change the period (or permit any acceleration, redeem, amendment or otherwise acquire any shares change) of capital stock or any other equity securities exercisability of options granted under the Parent or any securities convertible into or exchangeable for such shares of capital stock Stock Plans or other equity securities options and warrants or take any options, warrants, calls, or rights action to acquire reprice any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards options and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofwarrants;
(iiig) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete any formal or partial liquidation, dissolution, restructuring, recapitalization informal agreement or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or otherwise make any material changes in financial accounting methods, principles, commitment to do any of the foregoing or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) which would reasonably be expected to result in any of the conditions to the Mergers merger set forth in Article VI herein not being satisfied by the Outside Date; orsatisfied.
(viih) authorize any of, or commit, resolve or agree to take any of, action resulting in the foregoing actionsdelisting of Parent from the Amex; and
(i) take any action resulting in a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Opticare Health Systems Inc), Merger Agreement (Vision Twenty One Inc)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent and, with respect to clause (e), its subsidiaries, shall not, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth extent that Company shall otherwise consent in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):writing:
(ia) (1) declareDeclare, set aside or pay any dividends on, on or make any other distributions (whether in cash, stock shares, equity securities or property) in respect of, of any of its share capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, combine or reclassify any of its share capital stock or other equity or voting interests, or issue or authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares any capital stock, other than dividends or distributions by any of its capital stock Parent's subsidiaries to Parent or other equity or voting interestsany of Parent's subsidiaries;
(iib) purchasePurchase, redeem, redeem or otherwise acquire acquire, directly or indirectly, any shares of capital stock or any other equity securities of Parent or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any securities convertible employee pursuant to stock option or purchase agreements in effect on the date hereof;
(c) Cause, permit or propose any amendments to the Parent Certificate of Incorporation or Bylaws (or similar governing instruments of any of its subsidiaries);
(d) Revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices;
(i) Acquire or enter into a definitive agreement to acquire by merging or exchangeable for such shares consolidating with, or by purchasing any material portion of the capital stock or assets of, or by any other equity securities manner, any business or any optionscorporation, warrantspartnership, callsassociation or other business organization or division thereof or (ii) be acquired by or enter into a definitive agreement to be acquired by merging or consolidating with, or rights by another entity purchasing any material portion of the business of Parent or its subsidiaries, taken as a whole; provided, however, that the foregoing clauses (i) and (ii) shall not apply to acquire any such shares transaction or other equity securities, other series of transactions to effect the foregoing (a "Permitted Parent Transaction") whereby the consideration paid or payable under a transaction described in clause (i) is less than or equal to $1.45 billion or in the case of a transaction described in clause (1ii) the acquisition fully diluted capitalization of Parent (as defined below)is converted or would be convertible into less than 65% of the fully diluted capitalization of the resulting entity. For purposes of this Section 4.3(c), the value of noncash consideration with respect to clause (i) shall be, as to shares of Parent Common Stock, the number of such shares issuable in such transaction multiplied by the closing price of Parent Common Stock on NASDAQ on the date such transaction is closed or a definitive agreement is entered into and, as to noncash consideration, the fair market value of such consideration on the date such transaction is closed or a definitive agreement is entered into, with such fair market value to be determined in good faith by the Board of Directors of Parent. For purposes of this Section 4.3(e), the fully diluted capitalization of Parent immediately prior to such a transaction shall mean the number of shares of Parent Common Stock in connection with that (A) assumes that the surrender Merger occurred as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the shares of Parent Common Stock by holders issuable upon the Merger are based on Company Common Stock and other rights to acquire Company Common Stock as of March 31, 2001 and (C) is comprised all shares of outstanding Parent Common Stock, options and warrants to acquire Parent Common Stock Options in order to pay the exercise price thereof, (2) the withholding of and shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders issuable upon conversion of the Parent Common Stock;Convertible Notes and any other convertible debentures.
(ivf) adopt Agree in writing or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit otherwise to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth actions described in Article VI not being satisfied by the Outside Date; or
paragraphs (viia) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.through (e) above. ARTICLE V
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sawtek Inc \Fl\), Merger Agreement (Triquint Semiconductor Inc)
Conduct of Business by Parent. During the period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 4.01(a) of Parent Disclosure Schedule or as consented to in writing (which consent shall not be unreasonably withheld or delayed) in advance by the Company SMB or as otherwise specifically expressly permitted or required by under this Agreement or LawAgreement, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practicepractice and in compliance in all material respects with all applicable Laws except where any violation of applicable Laws would not have a Parent Material Adverse Effect and, to the extent consistent therewith, use commercially reasonable efforts to preserve substantially its relationships with customers, vendors and others having material business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 5.1(b4.01(a) of the Parent Disclosure Letter Schedule or as specifically otherwise expressly permitted or required by under this Agreement or LawAgreement, Parent and Merger Sub shall not, and shall not permit any of their Subsidiaries to, without the Company’s SMB's prior written consent (such which consent shall not to be unreasonably withheld, delayed withheld or conditioneddelayed):
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock stock, other than dividends or other equity interests, except for the payment distributions by Parent of quarterly cash dividends on shares a direct or indirect wholly-owned Subsidiary of Parent Common Stock with customary declarationto its stockholders, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock or other equity or voting interests;
(iiC) purchase, redeem, redeem or otherwise acquire any shares of its capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities thereof or any options, warrants, calls, calls or rights to acquire any such shares or other equity securities, other than in connection with (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders forfeiture of Parent Stock Options in order to pay the exercise price thereof, and restricted stock and (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted Parent Stock Options and restricted stock;
(ii) issue, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, including pursuant to Parent’s employee benefit plans, Contracts as in effect on the date hereof (3other than (A) the acquisition by Parent issuance of shares subject to awards granted pursuant to Parent’s employee benefit plans of Parent Common Stock upon the exercise of Parent Stock Options or Parent Warrants, in connection each case outstanding on the date hereof in accordance with their terms on the net settlement or forfeiture of such awards date hereof and (4B) repurchases pursuant to Parent’s publicly disclosed stock buyback program as required under any Parent Benefit Agreement or Parent Benefit Plan in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of effect on the date hereof);
(iii) amend Parent Articles or Parent By-laws or other comparable charter or organizational documents of any of Parent 's Subsidiaries, in each case except as may be required by Law or the rules and regulations of the SEC or the Nasdaq;
(iv) directly or indirectly acquire (A) by merging or consolidating with, or by purchasing assets of, or by any other manner, any Person or division, business or equity interest of any Person or (B) any asset or assets that, individually, has a purchase price in excess of $250,000 or, in the aggregate, have a purchase price in excess of $500,000, except for new capital expenditures, which shall be subject to the limitations of clause (vii) below, and except for purchases of supplies, equipment or other items in the ordinary course of business consistent with past practice;
(v) sell, lease, license, mortgage, sell and leaseback or otherwise changeencumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any of its material properties or other material assets or any interests therein, except for sales of used equipment in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money in excess of $10,000,000 or guarantee any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of Parent or any of its Subsidiaries or guarantee any debt securities of another person or (B) make any loans, advances or capital contributions to, or authorize investments in, any other Person, other than to employees in respect of travel or propose to other customary business expenses in the ordinary course of business consistent with past practice;
(vii) make any new capital expenditure or expenditures which, individually, is in excess of $250,000 or, in the aggregate, are in excess of $500,000;
(viii) enter into, modify, amend or otherwise changeterminate any Parent Material Contract or waive, its certificate of incorporation release or by-laws in a manner that could assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would reasonably be expected to adversely affect (A) result in a Parent Material Adverse Effect, (B) impair in any material respect the ability of Parent to perform its obligations under this Agreement or (C) prevent or materially delay the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common StockAgreement;
(ivix) adopt except as required pursuant to existing written agreements or Parent Benefit Plans in effect as of the date hereof and provided or made available to SMB, or as otherwise required by Law, (A) increase the compensation or other benefits payable or to become payable to directors or executive officers of Parent or any of its Subsidiaries except in the ordinary course of business consistent with past practices (including, for this purpose, the normal salary, bonus and equity compensation review process conducted each year), (B) grant any severance or termination pay to, or enter into a plan any severance agreement with any director or executive officer of complete Parent or partial liquidationany of its Subsidiaries, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned in the ordinary course of business consistent with past practice, (C) enter into any employment agreement with any executive officer of Parent or its Subsidiaries (except to the extent necessary to replace a departing employee and except for extension of Parentemployment agreements in the ordinary course of business consistent with past practice), or (D) establish, adopt, enter into or amend any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries;
(vx) except as required by GAAP, change its fiscal year, or make any material changes change in financial accounting methods, principles, principles or practices; or;
(vixi) take any action (or omit to take any action) if such action (or omission) would that is reasonably be expected likely to result in any of the conditions to of the Mergers Merger set forth in Article VI not being satisfied by the Outside Datesatisfied; or
(viixii) authorize any of, or commit, resolve resolve, propose or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without do any of the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):following:
(ia) (1) declareDeclare, set aside or pay any dividends on, on or make any other distributions (whether in cash, stock stock, equity securities or property) in respect of, of any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its any capital stock or other equity or voting interestsstock;
(iib) purchasePurchase, redeem, redeem or otherwise acquire acquire, directly or indirectly, any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such its subsidiaries, except repurchases of unvested shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock at cost in connection with the surrender termination of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable employment relationship with respect to awards granted any employee pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans stock option or purchase agreements in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of effect on the date hereof;
(iiic) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into Adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parentreorganization;
(vd) except Engage in any action that could reasonably be expected to cause the Merger to fail to qualify as required a "reorganization" under Section 368(a) of the Code whether or not otherwise permitted by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practicesthe provisions of this Article IV; or
(vie) take Acquire or agree to acquire by merging, consolidating with, or by purchasing any action (equity interest in or omit to take any action) if such action (or omission) would reasonably be expected to result in any a material portion of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any assets of, or commitby any other manner, resolve any business or agree to take any ofcorporation, partnership, association or other business organization or division thereof, or acquire, sell or otherwise dispose of any assets or enter into any joint ventures, strategic partnerships or alliances, in each case other than in the foregoing actionsordinary course of business consistent with past practice or for consideration (capital stock of Parent shall be measured at the then current market price per share) in excess of $20,000,000.
Appears in 2 contracts
Sources: Merger Agreement (Xcarenet Inc), Merger Agreement (Healthcare Com Corp)
Conduct of Business by Parent. During Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the period from earlier of the date termination of this Agreement to or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries subsidiaries to, carry on conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof until the earlier of the termination of this Agreement or the Effective Time, Parent shall not, and shall not permit any of its subsidiaries to:
(a) amend or otherwise change its certificate of incorporation or by-laws;
(b) issue, sell, pledge, dispose of, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest, thereof, or (ii) any of its assets, tangible or intangible;
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock, other than from any subsidiary of Parent to Parent or to any other subsidiary of Parent;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any property or assets of any other person, (ii) [other than in the ordinary course of business consistent with past practices,] incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or (iii) enter into any Parent Material Contract;
(f) make any capital expenditure or enter into any contract or commitment therefore, other than in the ordinary course of business consistent with past practices;
(g) amend, terminate or extend any Parent Material Contract;
(h) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):; or
(i) (1) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect ofagree, in lieu ofwriting or otherwise, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, take or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth foregoing actions or any action which would make any representation or warranty contained in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, IV untrue or commit, resolve or agree to take any of, the foregoing actionsincorrect.
Appears in 2 contracts
Sources: Merger Agreement (Front Porch Digital Inc), Merger Agreement (Front Porch Digital Inc)
Conduct of Business by Parent. During Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the period from earlier of the date termination of this Agreement to or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall cause each not, and shall not permit any of its Subsidiaries subsidiaries to:
(a) amend or otherwise change its articles of incorporation or by-laws, carry other than to increase the number of authorized shares of Parent Common Stock or Parent Preferred Stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement;
(b) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof;
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock;
(d) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except from any officer, director or employee upon termination of such officer, director or employee;
(e) (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than pursuant to leasing oil and gas properties or oil and gas development agreements entered into in the ordinary course of Parent’s business, consistent with past practice, or (iii) enter into any new contract or agreement which would require on the Parent Disclosure Schedule pursuant to Section 4.7 and not otherwise permitted pursuant to this Agreement;
(f) make any capital expenditure or enter into any contract or commitment therefore;
(g) amend, terminate or extend any contract or agreement listed on the Parent Disclosure Schedule pursuant to Section 4.7;
(h) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its business due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):;
(i) (1) declare, set aside or pay take any dividends onaction, or make permit any other distributions (whether in cashevent or condition to occur or exist, stock which would cause any representation or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares warranty of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practicesuntrue; or
(vij) take any action (agree, in writing or omit otherwise, to take any action) if such action (or omission) would reasonably be expected to result in authorize any of the conditions to the Mergers set forth foregoing actions or any action which would make any representation or warranty contained in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, IV untrue or commit, resolve or agree to take any of, the foregoing actionsincorrect.
Appears in 2 contracts
Sources: Merger Agreement (Legend Oil & Gas, Ltd.), Merger Agreement (New Western Energy Corp)
Conduct of Business by Parent. During Pending the period from the date of this Agreement Closing Date. Prior to the Effective TimeClosing Date, except as consented to unless EG and EG I shall otherwise agree in writing in advance by the Company or as otherwise specifically required contemplated by this Agreement Agreement:
(a) Parent shall not (i) directly or Lawindirectly redeem, Parent shallpurchase or otherwise acquire or agree to redeem, and shall cause each purchase or otherwise acquire any shares of its Subsidiaries tocapital stock entering into any agreements or contracts; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated herein; (iii) split, carry on its combine or reclassify outstanding common stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (iv) liquidate, dissolve or otherwise wind up their affairs; (v) avail itself of the protection of bankruptcy laws or other laws for the protection of creditors; (vi) change or otherwise alter their respective principal business, exit their current lines of business or enter into unrelated lines of business; (vii) change their respective current accountants or auditors;
(b) Parent shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, common stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(bbusiness; (iii) of the Parent Disclosure Letter incur additional indebtedness or as specifically required by this Agreement or Law, Parent shall not undertake any other liabilities without the Company’s prior written consent (of EG and EG I, such consent not to be unreasonably withheld, delayed or conditioned):
; (iiv) (1) declare, set aside or pay any dividends ongrant liens, or make security interests or enter into any other distributions transaction other than in the ordinary course of business; (whether in cashv) enter into any contract, stock agreement, commitment or property) in arrangement with respect of, to any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, foregoing or (2vi) splitexcept as contemplated by this Agreement, combineenter into any contract, agreement, commitment or reclassify any of its capital stock arrangement to dissolve, merge, consolidate or other equity or voting interests, or issue enter into any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsmaterial business combination;
(iic) purchaseParent Entities shall use their best efforts to preserve intact their respective business organizations, redeemto keep available the service of their respective present officers and key employees, or otherwise acquire any shares and to preserve the good will of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection those with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofwhich they have business relationships;
(iiid) amend or otherwise changeParent shall not, nor will Parent authorize any director or authorize or propose permit any officer or employee or any attorney, accountant or other representative retained by it to amend make, solicit, encourage any inquiries with respect to, or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect engage in any material respect the rights negotiations concerning, any Acquisition Proposal (as defined below for purposes of holders this paragraph). Parent will promptly advise EG and EG I orally and in writing of the Parent Common Stock;
(iv) adopt any such inquiries or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action proposals (or omit to take any actionrequests for information) if such action (or omission) would reasonably be expected to result in any of and the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.substance thereof. As used
Appears in 1 contract
Sources: Merger Agreement (Fona, Inc.)
Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shallshall not, and shall cause each of its Subsidiaries not permit Sub to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality do any of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):of the Company:
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock (in the case of Parent) or other equity interestsmembership interests (in the case of Sub), except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock (in the case of Parent) or other equity or voting interests, membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock (in the case of Parent) or other equity or voting interests;
membership interests (iiin the case of Sub), (C) purchase, redeem, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other equity securities of Parent thereof or any securities convertible into rights, warrants or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights options to acquire any such shares or other equity securities, other than securities or (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(ivD) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuringmerger, recapitalization consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other than such transactions among wholly-owned Subsidiaries fashion the corporate structure or ownership of ParentParent or Sub;
(vii) except as required by GAAPissue, change deliver, sell or grant (A) any shares of its fiscal yearcapital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or make any material changes in financial accounting methodsoptions, principleswarrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or practicesconvertible or exchangeable securities or (D) any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units; or
(viiii) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of amend the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any ofParent Charter, the foregoing actions.Parent By-laws or the comparable organizational documents of Sub;
Appears in 1 contract
Conduct of Business by Parent. During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by Time of the Company or as otherwise specifically required by this Agreement or LawMerger, Parent shall, and shall cause each of its the Parent Subsidiaries to, carry on its business their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business consistent dealings with past practicethem. In addition to and without Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective TimeTime of the Merger, except as expressly contemplated by this Agreement or as set forth in Section 5.1(b4.01(b) of the Parent Disclosure Letter Letter, or as specifically required otherwise approved in writing by this Agreement or Lawthe Company, Parent shall not, and shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):permit any Parent Subsidiary to:
(i) (1x) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock stock, other than dividends and distributions by a direct or other equity interests, except for the payment by indirect wholly owned Parent of Subsidiary to its parent and regular quarterly cash dividends on shares of the Parent Common Stock with customary declarationin an amount not in excess of $0.05 per share per quarter, record and payment dates in accordance with Parent’s current dividend policy, or (2y) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock stock, or other equity or voting interests;
(iiz) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities Parent Subsidiary or any optionsother securities thereof or any rights, warrants, calls, warrants or rights options to acquire any such shares or other equity securities; (ii) issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any share appreciation rights or share rights under Parent's 1996 Stock Option and Share Rights Plan (other than (1w) the acquisition by Parent issuance of shares of Parent Common Stock (and associated Parent Rights) in connection with Directors share rights and upon the surrender exercise of Parent Employee Stock Options outstanding on the date of this Agreement and in accordance with their present terms, (x) the issuance of shares of Parent Common Stock by holders (and associated Parent Rights) upon conversion of the Parent Convertible Notes, (y) the issuance of Parent Capital Stock pursuant to the Parent Rights Agreement) and (z) the grant of additional Parent Employee Stock Options in order the ordinary course of business consistent with past practice to pay employees of Parent and the exercise price thereof, (2) the withholding of Parent Subsidiaries covering not more than 600,000 shares of Parent Common Stock and the issuance of Parent Common Stock (and associated Parent Rights) upon the exercise thereof, but only if and to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) extent that the acquisition terms of such Parent Employee Stock Options provide that the consummation by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement will not result in the acceleration of vesting or adversely the exercisability of such Parent Employee Stock Options; (iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents, except for such amendments to its certificate of incorporation, by-laws and other comparable charter or organizational documents that do not have an adverse affect in any material respect on the rights of holders of the Parent Common Stock;
transactions contemplated by this Agreement; (iv) adopt acquire or enter into a plan of complete agree to acquire (x) by merging or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal yearconsolidating with, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any by purchasing a substantial portion of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any assets of, or commitby any other manner, resolve any business or agree any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to take any of, the foregoing actions.Parent and the Parent Subsidiaries taken as a whole;
Appears in 1 contract
Conduct of Business by Parent. During the period Pending Closing. Parent covenants and agrees with GreenHunter that, from the date of this Agreement to until the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on the Parent Companies will conduct its business only in the ordinary and usual course of business consistent with past practicepractices. In addition to Notwithstanding the preceding sentence, Parent covenants and without limiting the generality of the foregoingagrees with GreenHunter that, during the period except as specifically contemplated in this Agreement, from the date of this Agreement to until the Effective Time, without the prior written consent of GreenHunter, except as set forth in Section 5.1(bon the Parent Disclosure Schedule:
(a) None of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):
Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (1ii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends on, or make any other distributions (whether payable in cash, stock property or propertysecurities) in with respect of, any of to its capital stock stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, except including its capital stock, any rights, options or warrants to acquire its capital stock, or securities convertible into or exchangeable or exercisable for the payment by Parent of quarterly cash dividends on its capital stock (other than shares of Parent Common Stock with customary declarationissued pursuant to the exercise of any Parent Warrant outstanding on the date of this Agreement), record other than an equity financing of up to $7.5 million on terms that are approved by the Board of Directors of Parent and payment dates in accordance with Parent’s current dividend policyat a price per share that is not less 70% of the average historic trading price of Parent Common Stock during the 45 day period prior to such financing; (v) purchase, cancel, retire, redeem or (2) split, combine, or reclassify otherwise acquire any of its outstanding capital stock or other securities or other equity interests; (vi) merge or voting interestsconsolidate with, or issue transfer all or substantially all of its assets to, any other securities Person; (vii) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (viii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(b) None of the Parent Companies will (i) acquire any corporation, partnership or other business entity or any interest therein having an acquisition price in respect ofexcess of $7.5 million, in lieu of, individually or in substitution for shares the aggregate; (ii) sell, lease or sublease, transfer or otherwise dispose of its or mortgage, pledge or otherwise encumber any asset having a value in excess of $7.5 million, individually or in the aggregate; (iii) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any securities of any other Person (including any capital stock or other securities or equity interest in any Parent Subsidiary); (iv) organize or voting interestsform any subsidiary, or make any material loans, advances or capital contributions to, or investments in, any Person (other than loans or advances in the ordinary course of business) in an aggregate amount in excess of $500,000, individually or in the aggregate; (v) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(c) None of the Parent Companies will (i) incur any indebtedness for borrowed money other than under trade credit vendor lines not exceeding $7.5 million individually or in the aggregate; (ii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iii) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000 individually or in the aggregate; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(d) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, except pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(e) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances.
(f) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP.
(g) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent.
(h) None of the Parent Companies will:
(i) engage in any practice, take any action or permit by inaction any of the representations and warranties contained in Article 4 to become untrue, except as specifically permitted under other provisions of this Section 5.1(h);
(ii) purchaseapprove or implement budgets for general and administrative expenses of the Parent Companies (including salary, redeembonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or otherwise acquire incur expenses or disburse funds for any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted purposes except pursuant to Parent’s employee benefit plansthe budgets which have been disclosed to GreenHunter or revisions to such budgets which are approved by GreenHunter, such approval not to be unreasonably withheld (3) the acquisition by any budgets which have been disclosed to GreenHunter or modifications thereto which are approved as required herein are referred to as “Approved Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofBudgets”);
(iii) amend except to the extent already included in an Approved Parent Budget, enter into any agreements or otherwise changeother arrangements with respect to, or authorize make any payments, incur any expenses or propose disburse any funds for any Capital Project, the completion or full capitalization of which can reasonably be expected to amend require the Parent Companies to expend, in the aggregate, in excess of $2.5 million;
(iv) make any Capital Expenditure or otherwise changegeneral and administrative expense payment which exceeds by more than 20 percent the amount set forth in the appropriate line item for such expenditure in an Approved Parent Budget.
(i) None of Parent or any of its Affiliates will take, its certificate of incorporation cause or by-laws in a manner permit to be taken any action that could reasonably be expected to adversely affect pose a material risk to the consummation status of the transactions contemplated by this Agreement or adversely affect in any material respect Merger as a "reorganization" within the rights meaning of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actionsCode section 368(a).
Appears in 1 contract
Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise expressly contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause each Parent Subsidiary to, conduct its business in the ordinary course in substantially the same manner as previously conducted and use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Parent Disclosure Letter or otherwise expressly contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shallshall not, and shall cause each of its Subsidiaries not permit any Parent Subsidiary to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality do any of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):of the Company:
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, whether in cash, stock or property, other equity interests, except for the payment than (1) dividends and distributions by a direct or indirect wholly owned subsidiary of Parent of to its parent and (2) regular quarterly cash dividends on shares of with respect to the Parent Common Stock Stock, not in excess of $0.04 per share, with customary usual declaration, record and payment dates and in accordance with Parent’s current 's past dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock stock, or other equity or voting interests;
(iiC) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities Parent Subsidiary or any optionsother securities thereof or any rights, warrants, calls, warrants or rights options to acquire any such shares or other equity securities;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock, (B) any Voting Parent Debt or other 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) other than in the ordinary course of business consistent with past practice, any stock options, performance shares, incentive shares, restricted stock, "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than (1) the acquisition by Parent of shares issuance of Parent Common Stock in connection with (and associated Parent Rights) upon the surrender of shares exercise of Parent Common Stock by holders of Parent Employee Stock Options outstanding on the date of this Agreement and in order to pay the exercise price thereofaccordance with their present terms, (2) the withholding of shares issuance of Parent Common Preferred Stock to satisfy tax obligations or upon the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plansexercise of Parent Rights, (3) the acquisition by issuance of Parent of shares subject to awards granted Common Stock (and associated Parent Rights) pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards Parent Stock Option Agreement and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board sale or purchase of Directors as of the date hereofParent Common Stock (or its equivalent) under Parent Pension Plans;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or incorporation, by-laws or other comparable charter or organizational documents in a manner that could reasonably be expected adverse to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Company Common Stock;
(iv) adopt acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets that are material, individually or in the aggregate, to Parent and the Parent Subsidiaries, taken as a whole;
(v) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vi) sell, lease, license or otherwise dispose of or subject to any Lien any properties or assets that are material, individually or in the aggregate, to Parent and the Parent Subsidiaries, taken as a whole, except sales of obsolete assets in the ordinary course of business consistent with past practice;
(vii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent or any Parent Subsidiary, 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 a plan any arrangement having the economic effect of complete any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or partial liquidation(B) make any loans, dissolutionadvances or capital contributions to, restructuringor investments in, recapitalization or any other reorganization person, other than such transactions among wholly-to or in Parent or any direct or indirect wholly owned Subsidiaries subsidiary of Parent;
(vviii) except as required by GAAPmake or agree to make any new capital expenditure or expenditures that, change its fiscal yearindividually, is in excess of $5,000,000 or, in the aggregate, are in excess of $35,000,000;
(A) 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 make contemplated by, the most recent consolidated financial statements (or the notes thereto) of Parent included in the Filed Parent SEC Documents or in the Parent Disclosure Letter or incurred in the ordinary course of business consistent with past practice, (B) cancel any material changes indebtedness (individually or in financial accounting methodsthe aggregate), principleswaive any claims or rights of substantial value or (C) waive the benefits of, or practicesagree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent or any Parent Subsidiary is a party;
(x) take any action that (without giving effect to any action taken or agreed to be taken by the Company or any of its affiliates) would prevent Parent from accounting for the business combination to be effected by the Merger as a pooling of interests;
(xi) take any action that (without giving effect to any action taken or agreed to be taken by the Company or any of its affiliates) would render the provisions of Sections 132-134 of the BCL applicable to this Agreement or the Merger; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(viixii) authorize any of, or commit, resolve commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During the period from the date Agreement Date and continuing until the earlier of (i) the termination of this Agreement to Agreement, (ii) the Effective TimeTime and (iii) with respect to clause (c) below, except the applicable Restriction Date (as consented to defined in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Schedule 6.23(c)) Parent shallshall not, and it shall cause each of its Subsidiaries not to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality do any of the foregoing, during the period from the date of this Agreement following (except to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter extent expressly provided otherwise herein or as specifically required consented to in advance in writing by this Agreement or Lawthe Company, Parent which consent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed):
(ia) amend the Parent Organizational Documents;
(1b) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or stock, other equity interestsinterests or voting securities, except for the payment other than dividends and distributions by Parent of quarterly cash dividends on shares a direct or indirect wholly-owned subsidiary of Parent Common Stock with customary declaration, record to Parent and payment dates in accordance with Parent’s current stock dividend policysubject to Section 2.10, or (2ii) splitrepurchase, combineredeem or otherwise acquire, or reclassify offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or Equity Interests in, Parent or any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock Subsidiaries or any other equity securities of Parent or any securities of its Subsidiaries convertible into or exchangeable for such shares of capital stock or other equity voting securities of, or Equity Interest in, Parent or any optionsof its Subsidiaries, or any warrants, calls, options or other rights to acquire any such shares capital stock, voting securities or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofEquity Interests;
(iiic) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner take any action set forth on Schedule 6.23(c);
(d) take any action that could reasonably be expected to adversely affect prevent the consummation Merger from qualifying as a “reorganization” under Section 368(a) of the transactions contemplated by Code; provided, however, that neither Parent nor either of the Merger Sub shall be deemed to have breached this Agreement covenant as a result of a decline in the value of Parent Class A Common Stock prior to the Closing (for any reason or adversely affect for no reason) that results in any material respect the rights of holders failure of the Parent Common Stock;
(ivMerger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practicesthe Code; or
(vie) take any action (agree, resolve or omit commit to take any action) if such action (or omission) would reasonably be expected to result in do any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actionsforegoing.
Appears in 1 contract
Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries subsidiaries to, carry on their respective businesses in the ordinary course and use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers and others having business dealings with them. Prior to the release of any material press release, Parent shall give the Company reasonable advance notice. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time or until the earlier termination of this Agreement pursuant to its terms, except (1) as contemplated by this Agreement, (2) as set forth in Section 4.1(b) of the Parent Disclosure Schedule, or (3) with the prior written consent of the Company (which consent shall not be unreasonably withheld), Parent shall not, and shall not permit any of its subsidiaries to:
(A) declare, set aside or pay (whether in cash, stock, property or otherwise) any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of Parent 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 Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) other than the issuance of Parent Common Stock in connection with the merger of VideoGuide, Inc. or, upon the exercise of stock options outstanding under the Stock Incentive Plan outstanding on the date of this Agreement in accordance with their present terms or in accordance with the present terms of any employment agreements existing on the date of this Agreement and described in Section 4.1(b) of the Parent Disclosure Schedule or, the granting of stock options to purchase up to an aggregate of two million shares of Parent Common Stock (at an exercise price equal to the fair market value of the Parent Common Stock on the date of grant) pursuant to the Stock Incentive Plan as in effect on the date of this Agreement and the issuance of Parent Common Stock upon the exercise thereof, (A) issue, deliver, sell, award, pledge, dispose of or otherwise encumber or authorize or propose the issuance, delivery, grant, sale, award, pledge or other encumbrance (including limitations in voting rights) or authorization of, any shares of its capital stock, any voting securities or any securities convertible 44 49 into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, (B) amend or otherwise modify the terms of any such rights, warrants or options (except as expressly contemplated by this Agreement) or (C) accelerate the vesting of any of the stock options outstanding under the Stock Incentive Plan;
(iii) amend its articles of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (for cash or shares of stock or otherwise) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, which, in the aggregate, have a value in excess of $10,000,000;
(v) mortgage or otherwise encumber or subject to any Lien, or sell, lease, exchange or otherwise dispose of any of, its properties or assets, except for sales of its properties or assets in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):
(i) (1) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(iivi) purchasechange its fiscal year;
(vii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, redeem, issue or otherwise sell any debt securities or warrants or other rights to acquire any shares of capital stock or any other equity debt securities of Parent or any of its subsidiaries, guarantee any debt securities convertible of another person, enter into or exchangeable for such shares of capital stock any "keep well" or other equity securities agreement to maintain any financial statement condition of another person or enter into any optionsarrangement having the economic effect of any of the foregoing, warrantsexcept for the incurrence of indebtedness which, callsin the aggregate, does not exceed $1,000,000, or rights to acquire (B) other than in the ordinary course of business consistent with past practice, make any such shares loans, advances or capital contributions to, or investments in, any other equity securitiesperson, other than (1) the acquisition by to Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement any direct or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-indirect wholly owned Subsidiaries subsidiary of Parent;
(vviii) except as required by GAAPpay, change its fiscal yeardischarge 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 make any material changes contemplated by, the most recent consolidated financial statements (or the notes thereto) of Parent included in financial accounting methods, principles, the Parent SEC Documents or practicesincurred in the ordinary course of business consistent with past practice; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the period from earlier of the date termination of this Agreement to or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall cause each not, and shall not permit any of its Subsidiaries subsidiaries to:
(A) amend or otherwise change its certificate of incorporation or by-laws, carry on other than to increase the number of authorized shares of Parent Common Stock or Parent preferred stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement;
(B) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its assets, tangible or intangible, except pursuant to contracts or agreements identified in Parent Disclosure Schedule;
(C) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock, except, if at all, with respect to shares which may be issued in a Qualified Financing;
(D) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except from any officer, director or employee upon termination of such officer, director or employee;
(E) (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than pursuant to licensing/development agreements entered into in the ordinary course of Parent's business, consistent with past practice, or (iii) enter into any new Parent Contract not otherwise permitted pursuant to this Agreement;
(F) make any capital expenditure or enter into any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the Parent Disclosure Schedule;
(G) amend, terminate or extend any Parent Contract;
(H) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice;
(I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or
(I) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty contained in Article IV untrue or incorrect. In addition Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and without limiting agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for its officers, directors and employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the generality corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (each of the foregoing, during a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the period from Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Lawparagraph, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheldonly appoint, delayed or conditioned):
if any at all, (i) (1) declareindependent directors, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchaseother directors to replace existing directors, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend one or otherwise changemore officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, or authorize or propose taken together with all other contracts with any such newly appointed officers, in the aggregate, is material to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During Except for matters set forth in Section 5.1 of the period Parent Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law (including COVID-19 Measures) or with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to until the Effective Time, except as consented to in writing in advance by or, if earlier, the Company or as otherwise specifically required by termination of this Agreement or Lawin accordance with its terms, Parent shall, and shall cause each of its Subsidiaries Parent Subsidiary to, carry on (i) conduct its business in the ordinary course of business consistent with past practicein all material respects and (ii) use commercially reasonable efforts to preserve intact its business organization and advantageous business relationships. In addition to addition, and without limiting the generality of the foregoing, during except for matters set forth in Section 5.1 of the period Parent Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement or required by applicable Law (including COVID-19 Measures) or with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to until the Effective Time, except as set forth in Section 5.1(b) or, if earlier, the termination of the Parent Disclosure Letter or as specifically required by this Agreement or Lawin accordance with its terms, Parent shall not, and shall not without permit any Parent Subsidiary to, do any of the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):following:
(ia) amend the Parent Charter or the Parent By-laws;
(b) (1i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or propertyproperty or any combination thereof) in respect of, any of its capital stock or stock, other equity interestsinterests or voting securities, except for the payment other than dividends and distributions by a direct or indirect wholly-owned Parent of quarterly cash dividends on shares of Parent Common Stock with customary declarationSubsidiary to its immediate parent entity, record and payment dates in accordance with Parent’s current dividend policy, or (2ii) split, combine, subdivide or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting interests, securities or issue or authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock, other equity interests or voting securities or (iii) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or other equity or voting interests;
(ii) purchase, redeemsecurities of, or otherwise acquire any shares of capital stock equity interests in, Parent or any other equity Parent Subsidiary or any securities of Parent or any securities Parent Subsidiary convertible into or exchangeable or exercisable for such shares of capital stock or other voting securities of, or equity securities interests in, Parent or any optionsParent Subsidiary, or any warrants, calls, options or other rights to acquire any such shares capital stock, securities or other equity securitiesinterests, other than (1A) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options outstanding on the date hereof in order to pay the exercise price thereof, (2B) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, Parent Equity Awards outstanding as of the date hereof and (3C) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans the Parent Stock Plans in connection with the net forfeiture or cash settlement or forfeiture of such awards awards;
(c) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (except for transactions among Parent and any wholly-owned Parent Subsidiaries) (4i) repurchases any shares of capital stock of Parent or any Parent Subsidiary (other than the issuance of Parent Common Stock upon the exercise of the Parent Stock Options and the settlement of Parent Equity Awards pursuant to Parent’s publicly disclosed the Parent Stock Plans), (ii) any other equity interests or voting securities of Parent or any Parent Subsidiary, (iii) any securities convertible into or exchangeable or exercisable for capital stock buyback program or voting securities of, or other equity interests in, Parent or any Parent Subsidiary (other than the issuance of Parent RSU Awards and Parent Stock Options pursuant to the Parent Stock Plans as in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of effect on the date hereof;
), (iiiiv) amend any warrants, calls, options or otherwise changeother rights to acquire any capital stock or voting securities of, or authorize other equity interests in, Parent or propose to amend any Parent Subsidiary, (v) any rights issued by Parent or otherwise change, its certificate of incorporation or by-laws in a manner any Parent Subsidiary that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect are linked in any material respect way to the rights price of holders any class of Parent Common Stock or any shares of capital stock of any Parent Subsidiary, the value of Parent, any Parent Subsidiary or any part of Parent or any Parent Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Parent Common or any Parent Subsidiary, (vi) any Parent Voting Debt or (vii) any Parent Preferred Stock;
(ivd) except as permitted under the terms of the Parent Stock Plans as in effect on the date hereof or required pursuant to applicable Law, (i) enter into, adopt or enter into a plan of complete materially amend any plan, agreement or partial liquidation, dissolution, restructuring, recapitalization arrangement providing Parent Equity Awards or other reorganization equity-based awards, including the Parent Stock Plans; or (ii) amend or modify the terms of any outstanding Parent Equity Awards or other than such transactions among wholly-owned Subsidiaries of Parentawards under any Parent Stock Plan;
(ve) except as required by GAAP, change its fiscal year, or make any material changes change in financial accounting methods, principles, principles or practices; or, except insofar as may have been required by Law or a change in GAAP (after the date of this Agreement);
(vif) directly or indirectly acquire or agree to acquire in any transaction any (i) equity interest in a third party entity or (ii) business assets (other than in the ordinary course of business), in each case, for a total consideration of more than $40,000,000 per transaction (or series of related transactions);
(g) dispose of (whether by merger, consolidation, disposition of stock or assets or otherwise), directly or indirectly, any properties or assets, in each case, material to Parent and the Parent Subsidiaries, taken as a whole;
(h) take any action (actions or omit to take any actionactions that would or would be reasonably likely to (i) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI VII not being satisfied by satisfied, (ii) result in new or additional required approvals from any Governmental Authority in connection with the Outside DateTransactions or (iii) materially impair the ability of Parent, the Company or Merger Sub to consummate the Transactions in accordance with the terms of this Agreement or materially delay such consummation; or
(viii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Madison Square Garden Entertainment Corp.)
Conduct of Business by Parent. During Except as set forth on Section 4.1(b) of the period from the date of Parent Disclosure Letter, except as otherwise required, permitted or contemplated by this Agreement to the Effective Time, or except as consented to in writing in advance by the Company Company, which consent shall not be unreasonably withheld or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoingdelayed, during the period from the date of this Agreement to the Effective Time, Parent shall, and shall cause the Parent Subsidiaries to, carry on their respective businesses in the ordinary course. Without limiting the generality of the foregoing, except as set forth in on Section 5.1(b4.1(b) of the Parent Disclosure Letter Letter, except as otherwise required, permitted or as specifically required contemplated by this Agreement or Lawexcept as consented to in writing by the Company, which consent shall not be unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time, Parent shall not without the Company’s prior written consent (such consent and shall not to be unreasonably withheld, delayed or conditioned):permit any Parent Subsidiary to:
(i) (A) other than (1) dividends and distributions by a direct or indirect wholly owned Parent Subsidiary to its parent and (2) regular quarterly cash dividends with respect to Parent Common Stock, which shall be $0.14 per share of Parent Common Stock, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock or (C) except pursuant to agreements entered into with respect to the Parent Stock Plans that are in effect as of the close of business on the date of this Agreement, purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of the Parent Subsidiaries or any other equity securities thereof or voting interestsany rights, warrants or options to acquire any such shares or other securities;
(ii) issue or authorize the issuance of, deliver or sell any shares of its capital stock (or any other securities in respect of, in lieu of, or in substitution for for, shares of its capital stock or other equity or voting interests;
(ii) purchasestock), redeem, or otherwise acquire any shares of capital stock or any other equity voting securities of Parent or any securities convertible into into, or exchangeable for any rights, warrants or options to acquire, any such shares of capital stock or other equity shares, voting securities or any options, warrants, calls, or rights to acquire any such shares or other equity convertible securities, other than (1) the acquisition by Parent issuance of shares of Parent Common Stock upon the exercise of the Parent Stock Options under the Parent Stock Plans or in connection with the surrender of shares other awards or issuance of Parent Common Stock by holders of under the Parent Stock Options Plans, in order to pay the exercise price thereofany such case, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors outstanding as of the date hereofof this Agreement (or granted hereafter as permitted under this Agreement) and in accordance with their terms as in effect on the date of this Agreement (or, in the case of grants made subsequent to the date of this Agreement, in accordance with their terms as in effect on the date of grant, which terms shall be consistent with past practice);
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected (or other comparable organizational documents), other than amendments or changes to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders such documents of the Parent Common StockSubsidiaries in the ordinary course of business;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries in the ordinary course of Parentbusiness, sell, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Parent Permitted Liens) or otherwise dispose of any of its material properties or material assets;
(v) except as change the accounting principles used by it unless required by GAAPGAAP (or, change its fiscal yearif applicable with respect to foreign subsidiaries, the relevant foreign generally accepted accounting principles); or any Governmental Entity;
(vi) acquire by merging or consolidating with, by purchasing any substantial equity interest in or a substantial portion of the assets of, or by any other manner, any significant business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets that are material, individually or in the aggregate, to Parent and the Parent Subsidiaries, taken as a whole, except for (A) the purchase of assets from suppliers or vendors in the ordinary course of business, (B) items reflected in the capital plan of Parent previously provided to the Company or (C) acquisitions of businesses or assets not contemplated in clause (A) or (B) involving consideration up to an aggregate amount not to exceed $50,000,000;
(vii) except in the ordinary course of business, make or rescind any material changes in financial accounting methods, principlesexpress or deemed election or settle or compromise any material claim or action relating to Taxes, or practiceschange any of its methods of accounting or of reporting income or deductions for Tax purposes in any material respect;
(viii) satisfy any material claims or liabilities, other than in the ordinary course of business or in accordance with their terms;
(ix) other than in the ordinary course of business, (A) terminate or adversely modify or amend any contract having a duration of more than one year and total payment obligations of Parent in excess of $25,000,000 (other than (1) contracts terminable within one year or (2) the renewal, on substantially similar terms, of any contract existing on the date of this Agreement), (B) waive, release, relinquish or assign any right or claim of material value to Parent, or (C) cancel or forgive any material indebtedness owed to Parent or any Parent Subsidiary; or
(vix) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any ofauthorize, or commit, resolve commit or agree to take any of, of the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry provided on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b5.01(b) of the Parent Disclosure Letter or and except as specifically required expressly contemplated by this Agreement or Lawrequired by applicable Laws, Parent shall not, and shall not permit any of its Subsidiaries to, without the Company’s prior written consent (in the case of clause (ii) and (solely with respect to the foregoing clause) (vii), such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed):
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock stock, other than dividends or other equity interests, except for distributions by a direct or indirect wholly owned Subsidiary of the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, Company to its parent or (2B) split, combine, combine or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsstock;
(ii) purchaseexcept for transactions among Parent and one or more of its Subsidiaries or among one or more of Parent’s Subsidiaries, redeemand except in connection with any financing related to the Merger and the other transactions contemplated by this Agreement, issue, deliver, sell, grant, pledge or otherwise acquire encumber or subject to any Lien any shares of its capital stock or stock, any other equity voting securities of Parent or any securities convertible into into, or exchangeable for any rights, warrants or options to acquire, any such shares of capital stock or other equity shares, voting securities or any options, warrants, callsconvertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights to acquire any such shares or other equity securitiesstock-based performance units; provided, other than however, that Parent may (1A) the acquisition by Parent of issue shares of Parent Common Stock (1) in connection with respect of any current or future equity or equity based awards under the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereofPlans, (2) the withholding of shares of Parent Common Stock in order to satisfy tax obligations finance, or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plansas consideration in, acquisitions otherwise permitted by this Agreement, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with financing or refinancing transactions related to, or reasonably advisable in connection with, this Agreement and the net settlement or forfeiture of such awards transactions contemplated hereby (including to fund fees and expenses) and (4) repurchases pursuant to Parent’s publicly disclosed outstanding convertible securities, including warrants, (B) grant equity and equity-based awards in the ordinary course of business or (C) pledge or otherwise encumber or subject to any Liens shares of capital stock buyback program of a Subsidiary of Parent in amounts not exceeding connection with financing or refinancing transactions in the amounts authorized ordinary course of business and permitted by Parent’s Board of Directors as of the date hereofthis Agreement;
(iii) amend the Parent Charter (other than the Parent Charter Amendment) or otherwise change, the Parent Bylaws or authorize the comparable charter or propose to amend or otherwise change, organizational documents of any of its certificate of incorporation or by-laws Subsidiaries (other than in a manner that could reasonably be expected to adversely affect connection with the consummation of Merger and the other transactions contemplated by this Agreement Agreement) if such amendment would be adverse to Parent or adversely affect in any material respect the rights of Company, or holders of the Company Common Stock who receive Parent Common StockStock in the Merger;
(iv) adopt directly or enter into indirectly acquire (A) by merging or consolidating with, or by purchasing all of or a plan substantial equity interest in, or by any other manner, any division, business or equity interest of complete any person or partial liquidation(B) any assets forming part of such a division or business; except in each case, dissolutionthat would not, restructuringor would not reasonably be expected to, recapitalization prevent or other reorganization other than such transactions among wholly-owned Subsidiaries materially impair the ability of ParentParent or Merger Sub to consummate the Merger before the Termination Date;
(v) except as required by GAAP, change its fiscal yeartake any action that could, or make fail to take any material changes in financial accounting methodsaction, principlesthe failure of which could, or practices; orreasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(vi) enter into any other transaction or take any other action (or omit to take any action) if such action (or omission) that would reasonably be expected to result in any of prevent or materially delay or impair Parent’s or Merger Sub’s ability to consummate the conditions to Merger and the Mergers set forth in Article VI not being satisfied other transactions contemplated by the Outside Datethis Agreement; or
(vii) authorize any of, or commit, resolve propose or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During the period Pending Closing. Parent covenants and agrees with Prize that, from the date of this Agreement to until the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on the Parent Companies will conduct its business only in the ordinary and usual course of business consistent with past practicepractices. In addition to Notwithstanding the preceding sentence, Parent covenants and without limiting the generality of the foregoingagrees with Prize that, during the period except as specifically contemplated in this Agreement, from the date of this Agreement to until the Effective Time, without the prior written consent of Prize, except as set forth in Section 5.1(bon the Parent Disclosure Schedule:
(a) None of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):
Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (1ii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends on, or make any other distributions (whether payable in cash, stock property or propertysecurities) in with respect of, any of to its capital stock stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, except including its capital stock, any rights, options or warrants to acquire its capital stock, or securities convertible into or exchangeable or exercisable for the payment by Parent of quarterly cash dividends on its capital stock (other than shares of Parent Common Stock issued pursuant to the exercise of any Parent Warrant outstanding on the date of this Agreement); (v) purchase, cancel, retire, redeem or otherwise acquire any of its outstanding capital stock or other securities or other equity interests; (vi) merge or consolidate with, or transfer all or substantially all of its assets to, any other Person; (vii) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (viii) enter into any contract, agreement, commitment or arrangement with customary declarationrespect to any of the foregoing.
(b) None of the Parent Companies will (i) acquire any corporation, record partnership or other business entity or any interest therein (other than interests in joint ventures, joint operation or ownership arrangements or tax partnerships acquired in the ordinary course of business) having an acquisition price in excess of $3,000,000; (ii) sell, lease or sublease, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any Oil and payment dates Gas Interests of Parent that were assigned a value in the Reserve Data Value in excess of $3,000,000, individually, or any other assets that have a value at the time of such sale, lease, sublease, transfer or disposition in excess of $3,000,000, individually (except that this clause shall not apply to the sale of Hydrocarbons in the ordinary course of business or to encumbrances under the Parent Bank Credit Agreement); (iii) farm-out any Oil and Gas Interest of Parent having a value in excess of $3,000,000 or interest therein; (iv) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any securities of any other Person (including any capital stock or other securities or equity interest in any Parent Subsidiary); (v) make any material loans, advances or capital contributions to, or investments in, any Person (other than loans or advances in the ordinary course of business) in an aggregate amount in excess of $3,000,000; (vi) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(c) None of the Parent Companies will (i) permit to be outstanding at any time under the Parent Bank Credit Agreement indebtedness for borrowed money in excess of $160,000,000; (ii) incur any indebtedness for borrowed money other than under trade credit vendor lines not exceeding $15,000,000 in the aggregate or under the Parent Bank Credit Agreement; (iii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iv) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(d) The Parent Companies will operate, maintain and otherwise deal with the Oil and Gas Interests of Parent in accordance with good and prudent oil and gas field practices and in accordance with all applicable oil and gas leases and other contracts and agreements and all applicable laws, rules and regulations.
(e) None of the Parent Companies shall voluntarily resign, transfer or otherwise relinquish any right it has as of the date of this Agreement, as operator of any Oil and Gas Interest of Parent’s current dividend policy, except as required by law, regulation or contract, except to the extent such action would not be reasonably likely to have a Material Adverse Effect on Parent.
(f) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to the Prize Extraordinary Transaction Compensation Policy any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(g) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances.
(h) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, Parent will not be in violation of this Section 5.1(h) if any of the Parent Companies incurs obligations for penalties and interest in connection with gross production tax reporting in the ordinary course of business; and provided further, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP.
(i) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent.
(j) None of the Parent Companies will:
(i) engage in any practice, take any action or permit by inaction any of the representations and warranties contained in Article 4 to become untrue, except as specifically permitted under other provisions of this Section 5.1(j);
(ii) approve or implement budgets for general and administrative expenses of the Parent Companies (including salary, bonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or incur expenses or disburse funds for any of such purposes except pursuant to the budgets which have been approved by Prize or revisions to such budgets which are approved by Prize, such approval not to be unreasonably withheld (any budgets which have been or are approved as required herein are referred to as "Approved Budgets");
(iii) except to the extent already included in an Approved Budget, enter into any agreements or other arrangements with respect to, or make any payments, incur any expenses or disburse any funds for (1) any Capital Project, the completion or full capitalization of which can reasonably be expected to require the Parent Companies to expend, in the aggregate, in excess of $5,000,000, or (2) split, combine, or reclassify any Capital Project for the exploration of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
Oil and Gas Interests with undeveloped reserves (ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) including the acquisition by Parent of shares leasehold interests and seismic data, the drilling of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2wells and all related costs and exp▇▇▇▇▇) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could which can reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of require the Parent Common Stock;Companies to expend, in the aggregate, in excess of $2,500,000; or
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, Capital Expenditure or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of general and administrative expense payment which exceeds by more than 20 percent the conditions to the Mergers amount set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actionsappropriate line item for such expenditure in an Approved Budget.
Appears in 1 contract
Conduct of Business by Parent. During Pending the period from the date of this Agreement Closing Date. Prior to the Effective TimeClosing Date, except as consented to unless EG and EG I shall otherwise agree in writing in advance by the Company or as otherwise specifically required contemplated by this Agreement Agreement:
(a) Parent shall not (i) directly or Lawindirectly redeem, Parent shallpurchase or otherwise acquire or agree to redeem, and shall cause each purchase or otherwise acquire any shares of its Subsidiaries tocapital stock entering into any agreements or contracts; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated herein; (iii) split, carry on its combine or reclassify outstanding common stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (iv) liquidate, dissolve or otherwise wind up their affairs; (v) avail itself of the protection of bankruptcy laws or other laws for the protection of creditors; (vi) change or otherwise alter their respective principal business, exit their current lines of business or enter into unrelated lines of business; (vii) change their respective current accountants or auditors;
(b) Parent shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, common stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(bbusiness; (iii) of the Parent Disclosure Letter incur additional indebtedness or as specifically required by this Agreement or Law, Parent shall not undertake any other liabilities without the Company’s prior written consent (of EG and EG I, such consent not to be unreasonably withheld, delayed or conditioned):
; (iiv) (1) declare, set aside or pay any dividends ongrant liens, or make security interests or enter into any other distributions transaction other than in the ordinary course of business; (whether in cashv) enter into any contract, stock agreement, commitment or property) in arrangement with respect of, to any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, foregoing or (2vi) splitexcept as contemplated by this Agreement, combineenter into any contract, agreement, commitment or reclassify any of its capital stock arrangement to dissolve, merge, consolidate or other equity or voting interests, or issue enter into any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsmaterial business combination;
(iic) purchaseParent Entities shall use their best efforts to preserve intact their respective business organizations, redeemto keep available the service of their respective present officers and key employees, and to preserve the good will of those with which they have business relationships;
(d) Parent shall not, nor will Parent authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or otherwise acquire engage in any shares negotiations concerning, any Acquisition Proposal (as defined below for purposes of capital stock this paragraph). Parent will promptly advise EG and EG I orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving either EG or EG I or for the acquisition of a substantial equity interest in it or any other equity securities material assets of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, it other than (1) the acquisition as contemplated by this Agreement. Parent of shares of Parent Common Stock in connection will immediately cease and cause to be terminated any existing activities, discussions or negotiations with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable any person conducted heretofore with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Dateforegoing; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.and
Appears in 1 contract
Sources: Merger Agreement (Fona, Inc.)
Conduct of Business by Parent. During Except for matters set forth in Section 5.2 of the period Parent Disclosure Schedule or otherwise as expressly contemplated by this Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shallwill, and shall will cause each of its Subsidiaries to, carry on conduct its business in the ordinary course of business consistent with past practicepractice and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relationships with customers, suppliers, licensors and others having business dealings with them. In addition to addition, and without limiting the generality of the foregoing, during except for matters set forth in Section 5.2 of the period Parent Disclosure Schedule or otherwise expressly contemplated by this Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) Parent will not, and will not permit any of its Subsidiaries to, do any of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not following without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):of the Company:
(ia) (1i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock stock, other than dividends and distributions by a direct or other equity interests, except for the payment by Parent of quarterly cash dividends on shares indirect wholly owned Subsidiary of Parent Common Stock with customary declarationto its parent company, record and payment dates in accordance with Parent’s current dividend policy, or (2ii) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock stock, or other equity or voting interests;
(iiiii) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities its Subsidiaries or any optionsother securities thereof or any rights, warrants, calls, warrants or rights options to acquire any such shares or other equity securities;
(b) issue, deliver, sell or grant (i) any shares of its capital stock or other voting securities, (ii) 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 (iii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1A) the acquisition by Parent of shares issuance of Parent Common Stock in connection with pursuant to the surrender exercise or settlement of shares any equity award granted prior to the date hereof and (B) the issuance of equity awards to directors, officers and employees of Parent Common Stock by holders or its Subsidiaries in the ordinary course of Parent Stock Options business consistent in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable all material respects with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofpast practice;
(iiic) (i) amend any charter or otherwise change, or authorize or propose to amend or otherwise change, its certificate organizational documents of incorporation or by-laws any Subsidiary of Parent in a any manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result have an adverse effect on any shareholder of Parent or (ii) amend the Parent Charter Documents;
(d) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent or any of its Subsidiaries, except insofar as may have been required by a change in GAAP;
(e) enter into any new line of business outside of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Dateexisting business of Parent or its Subsidiaries; or
(viif) authorize any of, or commit, resolve commit or agree to take any of, the foregoing actions. Nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries prior to the Effective Time. Prior to the Effective Time, Parent will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Sources: Transaction Agreement (Dover Downs Gaming & Entertainment Inc)
Conduct of Business by Parent. During the period from Interim Period, except (x) as expressly set forth in Section 5.2 of the date Parent Disclosure Schedule or as expressly contemplated by any other provision of this Agreement to (including, without limitation, the Effective TimePlan of Conversion) or the Three Party Agreement, except as consented to in writing in advance by (y) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed) or (z) as otherwise specifically required by this Agreement or applicable Law, Parent shall, and shall cause each other member of its Subsidiaries the Parent Group to, carry on conduct its business operations in the ordinary course of business consistent and shall, and shall cause each other member of the Parent Group to, use its reasonable best efforts to (i) preserve substantially intact its business organization, (ii) keep available the services of its executive officers, other key employees and pilots, (iii) maintain in effect all material Parent Permits and (iv) maintain satisfactory relationships of the Parent Group with past practiceany persons with which the Parent Group has material business relations and with Governmental Entities that have jurisdiction over its business and operations. In addition to and without Without limiting the generality of the foregoing, during the period from Interim Period, except as permitted by clauses (x) through (z) above, Parent shall not, and shall cause each other member of the Parent Group not to:
(a) amend or otherwise change (whether by merger, consolidation, conversion or otherwise) (i) the Parent Charter or Parent Bylaws, (ii) the comparable organizational documents of any other member of the Parent Group, (iii) the Post-Conversion Parent Charter or Post-Conversion Parent Bylaws (in each case, following the Conversion), or (iv) the Parent Treasury Documents;
(b) issue, sell, pledge, convey, dispose of (by merger, consolidation, division, operation of law or otherwise), grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, any member of the Parent Group of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract right), of such member of the Parent Group, other than (i) the issuance of shares of Parent Common Stock upon the vesting of equity award that are outstanding as of the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b4.2(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not Schedule in accordance with their terms and those equity awards disclosed therein to be unreasonably withheldissued to members of Parent’s board of director pursuant to annual equity grants and to the executive officers of Parent pursuant to the terms of their respective employment agreements, delayed or conditioned):(ii) the issuance of shares of Parent Common Stock upon the exercise of the Parent Warrants;
(c) sell, pledge, convey, abandon, allow to lapse or expire, fail to renew or maintain, dispose of (by merger, consolidation, division, operation of Law or otherwise), transfer, lease, license or subject to any Lien (other than a Permitted Lien) any material property or assets (including any material Intellectual Property Rights) of any member of the Parent Group (other than non-exclusive licenses of Intellectual Property Rights granted in the ordinary course of business), except (i) pursuant to or as required by, any of the Contracts in effect as of the date of this Agreement and previously made available to the Company or (1ii) any sale, pledge, conveyance, consolidation, division, transfer, lease, license, or Lien solely between or among the Parent Group;
(d) declare, set aside aside, make or pay any dividends on, dividend or make any other distributions distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or propertyenter into any agreement with respect to the voting or registration of any of its capital stock, except any dividend or distribution declared, set aside, made, or paid by any member of the Parent Group to any other member of the Parent Group;
(e) in respect reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire (by merger, consolidation, operation of law, acquisition of stock, other equity interests or assets, formation of a joint venture or otherwise), directly or indirectly, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policyEquity Interests, or (2) split, combine, authorize or reclassify any propose the issuance of its capital stock or other equity or voting interests, or issue any other securities Equity Interests in respect of, in lieu of, of or in substitution for shares of its capital stock or other equity Equity Interests, except for the vesting or voting interests;
(iisettlement of any Parent RSUs or Parent Restricted Stock Awards set forth in Section 4.2(b) purchase, redeem, or otherwise acquire to fund any shares Tax withholding obligations of capital stock or any other equity securities a member of the Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock Group in connection with the surrender vesting or settlement of shares of any Parent Common RSUs or Parent Restricted Stock by holders of Parent Stock Options Awards in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection accordance with the net settlement or forfeiture terms of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized award or by Parent’s Board of Directors as any member of the date hereofParent Group to any other member of the Parent Group;
(iiif) amend merge or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in consolidate any material respect the rights of holders member of the Parent Common Stock;
(iv) Group with any Person or adopt or enter into a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization recapitalization, conversion or other similar reorganization other than such transactions among wholly-owned Subsidiaries of Parentany member of the Parent Group;
(vg) acquire (including by merger, consolidation, operation of Law, or acquisition of stock or other equity interests or assets, formation of a joint venture or otherwise) any interest in any Person or any assets, other than the purchase or acquisition of equipment, goods, technology, non-exclusive licenses under Intellectual Property Rights, or other materials, in each case, in the ordinary course of business;
(h) enter into any new line of business or terminate any line of business existing as of the date of this Agreement;
(i) (i) voluntarily repurchase, voluntarily prepay or incur any Indebtedness, in each case, (ii) make any loans, advances or capital contributions to, or investments in, any other Person (other than a member of the Parent Group), (iii) enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another Person that is not a member of the Parent Group or enter into any arrangement having the economic effect of any of the foregoing or (iv) assume, guarantee or endorse, or otherwise become liable or responsible for, similar obligations contemplated in clauses (i) and (ii) of any Person that is not a member of the Parent Group;
(j) enter, extend or renew or otherwise modify, amend or terminate or waive any material rights or obligations under any Parent Material Contract (or any Contract that would have been a Parent Material Contract if in existence as of the date hereof);
(k) make or authorize any capital expenditure, except for capital expenditures expressly set forth in the capital expenditures budget set forth on Section 5.2(k) of the Parent Disclosure Schedule;
(l) except to the extent required by (i) applicable Law or (ii) the existing terms of any Parent Benefit Plan or Parent CBA previously made available to the Company: (A) increase the compensation or benefits payable or to become payable to any Parent Service Provider (except in the ordinary course of business consistent with past practice with respect to any Parent Service Provider whose annual base compensation does not exceed $150,000), (B) grant any additional rights to severance or termination pay to, or enter into or amend any severance agreement with, any Parent Service Provider (other than in the ordinary course of business consistent with past practice in connection with a promotion of any Parent Service Provider whose annual base compensation, after such promotion, does not exceed $150,000), (C) establish, terminate, adopt, enter into or amend any bonus, profit sharing, thrift, pension, retirement, deferred compensation, retention, termination or severance plan, agreement, trust, fund, policy or other arrangement for the benefit of any Parent Service Provider (other than in the ordinary course of business consistent with past practice in connection with the hiring of any new Servicer Provider permitted under clause (E) below), (D) loan or advance any money or property to any Parent Service Provider (other than in connection with ordinary course business expense reimbursement and advances), (E) hire any Parent Service Provider, other than any Parent Service Provider whose anticipated annual base compensation does not exceed $150,000 in the ordinary course of business and on terms consistent with similarly situated Parent Service Providers, (F) terminate (other than termination for cause, death or disability) any Parent Service Provider, other than any Parent Service Provider whose annual base compensation does not exceed $150,000 in the ordinary course of business, or (G) make any material change to the terms and conditions of employment applicable to any group of employees, as reflected in work rules, employee handbooks, policies and procedures, or otherwise;
(m) (i) terminate, discontinue, close or dispose of any facility or business operation, or lay off any employees, or (ii) implement any early retirement or separation program, or any program providing early retirement window benefits or announce or plan any such action or program for the future;
(n) enter into or amend any collective bargaining agreement;
(o) forgive any material loans to Parent Service Providers or any of their respective Affiliates;
(p) make any material change in accounting policies, practices, principles, methods or procedures in effect as of September 30, 2024, other than as required by GAAPGAAP or by applicable Law;
(q) make any material adverse change to any privacy policy or to the security or operation of any Parent IT Assets, change its fiscal yearexcept in each case as required by applicable Law;
(r) enter into, terminate or materially amend any Parent Related Party Transaction other than as permitted pursuant to Section 5.2(l);
(s) implement any new policies or practices (or make any material changes in financial accounting methods, principles, to existing policies or practices; or) with respect to equity, interest rate, currency or commodity derivatives or hedging transactions;
(t) compromise, settle or agree to settle any Proceeding, other than any compromise, settlement or agreement for the payment of monetary damages (and compliance with confidentiality and other similar customary provisions) by Parent of $100,000 or less individually or $250,000 or less in the aggregate and is not covered by any Parent Insurance Policy or paid by the respective insurers thereunder, in each case as its sole remedy;
(i) make, change or rescind any material Tax election; (ii) settle or compromise any material Tax liability or claim or assessment for a material amount of Taxes; (iii) change (or request to change) any method of accounting for Tax purposes; (iv) file an amendment to any material Tax Return; (v) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Parent Group (or its respective income, assets and operations) other than any extension pursuant to an extension to file any Tax Return; (vi) knowingly surrender or allow to expire any right to claim a refund of Taxes; (vii) enter into any “closing agreement” as described in Section 7121 of the Code (or any similar Legal Requirement) with any Governmental Entity; (viii) incur any material liability for Taxes other than in the ordinary course of business; (ix) prepare any material Tax Return in a manner inconsistent with past practice; or (x) take any action (or omit knowingly fail to take any action) if such action (or omission) that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment (as defined below);
(v) write up, write down or write off the book value of any tangible assets, except for depreciation, amortization or impairment in accordance with GAAP consistently applied;
(w) change the seat count, main cabin configuration or on-board amenities (including in-flight entertainment and wireless internet) of any aircraft subject to future delivery to Parent under any Parent Aircraft Purchase Contract;
(x) take any action, or fail to take action, which action or failure would be reasonably expected to result in the revocation, termination, cancellation or withdrawal of any Parent Slots (excluding temporary returns to the FAA);
(y) fail to continue, in respect of all Parent Aircraft, all material maintenance programs applicable to such Parent Aircraft in the ordinary course of business (except as required by applicable Law), including using reasonable best efforts to keep all such Parent Aircraft in such condition as may be necessary to enable the airworthiness certification of such Parent Aircraft under the Federal Aviation Act to be maintained in good standing at all times;
(i) take any action that would cause any air carrier member of the conditions Parent Group to fail to be, or fail to be owned and controlled by a “citizen of the Mergers set forth United States” as defined in Article VI not being satisfied 49 U.S.C. § 40102(a)(15) of the Federal Aviation Act and as interpreted by DOT, or (ii) take any action that would cause any member of the Outside DateParent Group to fail to continue to be fully authorized and qualified to operate as an “air carrier” within the meaning of such Act operating under certificates and exemptions issued pursuant to such Act (49 U.S.C. §§ 40102(a)(2), 40109- and 41101-41112); or
(viiaa) agree, resolve, authorize or enter into any ofContract or otherwise make any commitment, in each case to do any of the foregoing. In addition, from the date hereof through the Closing:
(i) Parent shall remain current and compliant in all material respects with all of its Indebtedness and creditor obligations, including the Mesa Obligations (as defined in the Three Party Agreement), and shall not incur, assume, guarantee or commitotherwise become liable for any incremental Indebtedness;
(ii) except in the ordinary course of business consistent with past practice, resolve Parent shall not enter into any new Contracts with third Persons or agree to take any ofemployees, including labor groups, that create new liabilities or financial obligations for Parent or, after the Closing, the foregoing actionsSurviving Corporation (including, for the avoidance of doubt, any new collective bargaining agreements, letters of agreement or any amendments thereto), nor will Parent have instituted any wage rate increases for any of its employee groups, in each case without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
(iii) Parent shall use its cash and cash equivalents only in the ordinary course of business or to repay, retire or otherwise extinguish the Mesa Obligations as and to the extent contemplated by the Three Party Agreement; and
(iv) Parent shall not make any new purchases of aircraft, engines or any other capital assets, and shall not enter into any new strategic relationships, software license agreements or other material long term Contracts. Without limiting Section 5.2, nothing contained in this Agreement will give the Company, directly or indirectly, the right to control or direct the operations of Parent prior to the Effective Time. Prior to the Effective Time, Parent will exercise, consistent with the terms and conditions of this Agreement, including Section 5.2, complete control and supervision over its operations.
Appears in 1 contract
Sources: Agreement, Plan of Conversion and Plan of Merger (Mesa Air Group Inc)
Conduct of Business by Parent. During the period from From the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course of business consistent with past practice. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or LawClosing Date, Parent shall not do any of the following without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):of the Shareholder and the Company:
(i) (1A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interestsstock, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2B) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock or other equity or voting interests;
stock, (iiC) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent thereof or any securities convertible into rights, warrants or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights options to acquire any such shares or other equity securities, other than securities or (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(ivD) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuringmerger, recapitalization consolidation, recapitalization, or other reorganization of, or alter through merger, liquidation, reorganization or restructuring or in any other fashion its corporate structure;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock, (B) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares of its capital stock (other than such transactions among whollyvesting of currently outstanding options and warrants pursuant to their terms), or (C) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-owned Subsidiaries based performance units;
(iii) amend the Parent Charter or the Parent Bylaws other than as contemplated herein;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of Parentthe assets of, or by any other manner, any equity interest in or business of any corporation, partnership, joint venture, association or other business organization or division thereof;
(v) except as required by GAAPsell, change its fiscal yeartransfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or make create, incur, assume or allow any material changes in financial accounting methodsLien, principles, or practices; orother than Parent Permitted Liens;
(vi) take (A) enter into or amend any action material Parent Contract; or (B) modify, amend, transfer, terminate or waive any rights under any material Parent Contract;
(vii) enter into or amend any material Parent Contract, transaction, indebtedness or other arrangement in which any of Parent’s officers, directors, shareholders or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest;
(A) except with respect to continued advances pursuant to the terms of the Wachovia Obligations, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities, 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, (B) make any loans, advances or capital contributions to, or investments in, any other Person or (iii) create, incur, assume or guarantee any material capitalized lease obligations;
(ix) establish, adopt, enter into or amend, modify or terminate any Parent Benefit Plans, including any bonus, profit sharing, compensation, stock option, warrant, pension, retirement, deferred compensation, employment, severance, termination, change in control, indemnification, retention bonus or other employee benefit plan, agreement, trust fund or arrangement for the benefit or welfare of any officer, director, shareholder, employee, consultant or other individual performing services for Parent, (ii) agree to any increase in the compensation or benefits, including cash, equity, and other forms of compensation payable or to become payable to, or any increase in the contractual term of employment of, any officer, director, shareholder or consultant or salaried employee (iii) pay any benefit not required by any Parent Benefit Plan or other plan or agreement, (iv) establish, adopt, enter into or amend in any respect any collective bargaining agreement, or any other agreement or commitment to or relating to any labor union, or (v) make any determination under any collective bargaining agreement, or any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(x) do or omit to take any action, or permit any omission to act, that would cause a breach or default under, or the termination, modification or amendment of, any material Parent Contract, or any government license, material Permit or other material authorization;
(xi) if such amend, modify, extend, renew or terminate any lease, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property;
(xii) make or omit to take any action which would be reasonably anticipated to have a Parent Material Adverse Effect;
(xiii) form, establish or omission) would reasonably be expected to result in acquire any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside DateSubsidiary; or
(viixiv) authorize any oftake, or commitauthorize, resolve commit or agree to take any of, of the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. During Except as set forth in Section 4.01(b) of the Parent Disclosure Letter, except as otherwise contemplated by this Agreement or except as consented to in writing by the Company, during the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and as it is currently proposed to be conducted and in compliance in all material respects with all applicable Laws and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having business consistent dealings with past practiceit. In addition to and without Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as contemplated by this Agreement or as set forth in Section 5.1(b4.01(b) of the Parent Disclosure Letter Letter, or as specifically required otherwise approved in writing by this Agreement or Lawthe Company, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):not:
(i) (1A) declareadjust, set aside split, combine or reclassify the Parent Common Stock, (B) make, declare or pay any dividends dividend or distribution on, or, directly or make any other distributions (whether in cashindirectly, stock redeem, purchase or property) in respect ofotherwise acquire, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declarationor any securities or obligations convertible into or exchangeable for any shares of Parent Common Stock, record and payment dates in accordance with Parent’s current dividend policy(C) grant any person any right or option to acquire any shares of Parent Common Stock, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of Parent Common Stock or any securities or obligations convertible into or exchangeable or exercisable for any shares of Parent Common Stock or such securities, or (2E) splitenter into any agreement, combineunderstanding or arrangement with respect to the sale, voting, registration or reclassify any repurchase of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interestsParent Common Stock;
(ii) purchasedirectly or indirectly, redeemsell, transfer, lease, pledge, mortgage, encumber or otherwise acquire dispose of any shares of capital stock its property or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereofassets;
(iii) make or propose any changes in its Certificate of Incorporation or Bylaws;
(iv) merge or consolidate with any other person;
(v) acquire assets or capital stock of any other person;
(vi) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other person;
(vii) create any subsidiaries;
(viii) enter into, amend or otherwise changemodify any employment, severance, termination or similar agreements or arrangements with, or authorize grant any bonuses, salary increases, severance or propose to termination pay to, any officer, director, consultant or employee, or pay any amounts not otherwise due to, any officer, director, consultant or employee, except as may be required by applicable Laws;
(ix) enter into, adopt or amend or otherwise change, its certificate any "employee benefit plan" as defined in Section 3(3) of incorporation or by-laws in a manner ERISA;
(x) take any action that could reasonably be expected give rise to adversely affect severance benefits payable to any officer or director of Parent as a result of the consummation of any of the transactions contemplated by this Agreement (including in connection with any post-consummation termination of employment);
(xi) change any method or adversely affect principle of Tax or financial accounting, except to the extent required by GAAP or applicable Law;
(xii) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any Contract to which Parent is a party;
(xiii) enter into, amend or terminate any confidentiality agreements, standstill agreements or similar arrangements or waive any provisions under any existing confidentiality agreement, standstill agreement or similar arrangements;
(xiv) write up, write down or write off the book value of any assets, except as required by GAAP consistently applied or as required by applicable Law;
(xv) incur or commit to any capital expenditures;
(xvi) take any action that would reasonably be likely to result in (A) any representation or warranty of Parent set forth in Article III becoming not true or not accurate in any material respect the rights of holders of the Parent Common Stock;
or (ivB) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers condition set forth in Article VI not being satisfied by satisfied;
(xvii) enter into or carry out any other transaction other than in the Outside Dateordinary course of business;
(xviii) make, revoke or amend any Tax election, settle or compromise any claim or assessment with respect to Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any Taxes or amend any Tax Returns; or
(viixix) authorize any of, agree (whether or commit, resolve or agree not in writing) to take any of, of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (BTHC VI Inc)
Conduct of Business by Parent. During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by Time of the Company or as otherwise specifically required by this Agreement or LawMerger, Parent shall, and shall cause each of its the Parent Subsidiaries to, carry on its business their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business consistent dealings with past practicethem. In addition to and without Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective TimeTime of the Merger, except as expressly contemplated by this Agreement or as set forth in Section 5.1(b4.01(b) of the Parent Disclosure Letter Letter, or as specifically required otherwise approved in writing by this Agreement or Lawthe Company, Parent shall not, and shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):permit any Parent Subsidiary to:
(i) (1x) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock stock, other than dividends and distributions by a direct or other equity interests, except for the payment by indirect wholly owned Parent of Subsidiary to its parent and regular quarterly cash dividends on shares of the Parent Common Stock with customary declarationin an amount not in excess of $0.05 per share per quarter, record and payment dates in accordance with Parent’s current dividend policy, or (2y) split, combine, combine or reclassify any of its capital stock or other equity issue or voting interests, or issue authorize the issuance of any other securities in respect of, in lieu of, of or in substitution for shares of its capital stock stock, or other equity or voting interests;
(iiz) purchase, redeem, redeem or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities Parent Subsidiary or any optionsother securities thereof or any rights, warrants, calls, warrants or rights options to acquire any such shares or other equity securities;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any share appreciation rights or share rights under Parent's 1996 Stock Option and Share Rights Plan (other than (1w) the acquisition by Parent issuance of shares of Parent Common Stock (and associated Parent Rights) in connection with Directors share rights and upon the surrender exercise of Parent Employee Stock Options outstanding on the date of this Agreement and in accordance with their present terms, (x) the issuance of shares of Parent Common Stock by holders (and associated Parent Rights) upon conversion of the Parent Convertible Notes, (y) the issuance of Parent Capital Stock pursuant to the Parent Rights Agreement) and (z) the grant of additional Parent Employee Stock Options in order the ordinary course of business consistent with past practice to pay employees of Parent and the exercise price thereof, (2) the withholding of Parent Subsidiaries covering not more than 600,000 shares of Parent Common Stock and the issuance of Parent Common Stock (and associated Parent Rights) upon the exercise thereof, but only if and to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) extent that the acquisition terms of such Parent Employee Stock Options provide that the consummation by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement will not result in the acceleration of vesting or adversely the exercisability of such Parent Employee Stock Options;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents, except for such amendments to its certificate of incorporation, by-laws and other comparable charter or organizational documents that do not have an adverse affect in any material respect on the rights of holders of the Parent Common Stocktransactions contemplated by this Agreement;
(iv) adopt acquire or enter into agree to acquire (x) by merging or consolidating with, or by purchasing a plan substantial portion of complete the assets of, or partial liquidationby any other manner, dissolutionany business or any corporation, restructuringpartnership, recapitalization limited liability company, joint venture, association or other reorganization other than such transactions among wholly-owned business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Parent and the Parent Subsidiaries of Parenttaken as a whole;
(v) except as required by GAAPsell, change its fiscal yearlease, license, mortgage or make otherwise encumber or subject to any material changes Lien or otherwise dispose of any Parent Property other than (A) sales and dispositions of interests or rights with respect to real property having an aggregate fair market value on the date of this Agreement of less than $20,000,000, raw materials, obsolete equipment, mine output and other inventories, in financial accounting methodseach case only if in the ordinary course of business consistent with past practice, principles, or practices; orand (B) encumbrances and Liens that are incurred in the ordinary course of business consistent with past practice;
(vi) take (y) incur any action (indebtedness for borrowed money or omit guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to take acquire any action) if such action (debt securities of Parent or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.any
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Conduct of Business by Parent. During Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the period from earlier of the date termination of this Agreement to or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall cause each not, and shall not permit any of its Subsidiaries subsidiaries to:
(A) amend or otherwise change its certificate of incorporation or by-laws, carry on other than to increase the number of authorized shares of Parent Common Stock or Parent preferred stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement;
(B) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its assets, tangible or intangible, except pursuant to contracts or agreements identified in Parent Disclosure Schedule;
(C) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock, except, if at all, with respect to shares which may be issued in a Qualified Financing;
(D) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except from any officer, director or employee upon termination of such officer, director or employee;
(i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than pursuant to licensing/development agreements entered into in the ordinary course of Parent's business, consistent with past practice, or (iii) enter into any new Parent Contract not otherwise permitted pursuant to this Agreement;
(F) make any capital expenditure or enter into any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the Parent Disclosure Schedule;
(G) amend, terminate or extend any Parent Contract;
(H) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice;
(I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or
(I) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty contained in Article IV untrue or incorrect. In addition Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and without limiting agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for its officers, directors and employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the generality corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (each of the foregoing, during a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the period from Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Lawparagraph, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheldonly appoint, delayed or conditioned):
if any at all, (i) (1) declareindependent directors, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchaseother directors to replace existing directors, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into or exchangeable for such shares of capital stock or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend one or otherwise changemore officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, or authorize or propose taken together with all other contracts with any such newly appointed officers, in the aggregate, is material to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practices; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(vii) authorize any of, or commit, resolve or agree to take any of, the foregoing actions.
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Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except as consented to in writing in advance by the Company or as otherwise specifically required by this Agreement or Law, Parent shall, and shall cause each its subsidiaries to, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers and others having business dealings with them. Between the date of this Agreement and the Effective Time or until the earlier termination of this Agreement pursuant to its terms, except (1) as contemplated by this Agreement, (2) as set forth in Section 4.1(b) of the Parent Disclosure Schedule, or (3) with the prior written consent of the Company, Parent shall not, and shall not permit any of its Subsidiaries subsidiaries to:
(A) declare, set aside or pay (whether in cash, stock, property or otherwise) any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of Parent 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 Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, that with respect to clause (C) only, Parent may take such actions in an aggregate amount not to exceed $50 million in addition to any such actions taken as required by the proviso in Section 4.1(b)(ii)(C) to offset issuances of capital stock in an acquisition permitted under Section 4.1(b)(iv);
(ii) (x) issue, deliver, sell, award, pledge, dispose of or otherwise encumber or authorize or propose the issuance, delivery, grant, sale, award, pledge or other encumbrance (including limitations in voting rights) or authorization of, any shares of its capital stock, any voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, (y) amend or otherwise modify the terms of any such rights, warrants or options (except as expressly contemplated by this Agreement) or (z) accelerate the vesting of any of the stock options in each case other than (A) the issuance of Parent Common Stock upon the exercise of stock options outstanding under the Parent Stock Incentive Plan on the date of this Agreement in accordance with their present terms or in accordance with the present terms of any employment agreements existing on the date of this Agreement, (B) the grant of stock options to employees and directors to purchase up to 1,000,000 shares of Parent Common Stock (at an exercise price equal to the fair market value of the Parent Common Stock on the date of grant) pursuant to the Parent Stock Incentive Plan as in effect on the date of this Agreement (as the same may be amended to increase the number of shares of Parent Common Stock which may be the subject of awards thereunder), and the issuance of Parent Common Stock upon the exercise thereof, and (C) the issuance of Parent Common Stock in connection with a transaction not prohibited by Section 4.1(b)(iv); provided, however, that stock issuances in connection with a transaction permitted under Section 4.1(b)(iv) hereof may not exceed the number of shares of Parent Common Stock purchased by the Parent after the date hereof;
(iii) amend its Amended and Restated Articles of Association or Amended and Restated Memorandum of Association, other than as contemplated by the Domestication;
(iv) acquire or agree to acquire (for cash or shares of stock or otherwise) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; provided, however, that the Parent and its subsidiaries may enter into such transactions (in addition to those listed on Schedule 4.1(b)), other than with an affiliate, if the purchase price and required capital contributions therefore (whether consisting of cash or Parent Common Stock or a combination of both) do not exceed, in the aggregate, $200 million (the "Parent Acquisition Basket"), and if such transactions would not be reasonably likely to prevent or materially delay the consummation of the Merger;
(v) mortgage or otherwise encumber or subject to any lien (a non- exclusive license shall not be considered a mortgage, encumbrance or lien), or sell, lease, exchange or otherwise dispose of any of, its properties or assets, except for sales of its properties or assets in the ordinary course of business consistent with past practice or other sales that, exclusive of the transactions listed on Schedule 4.1(b) of the Parent Disclosure Schedule, do not exceed, in the aggregate $50 million;
(vi) dispose of, pledge or encumber any of Parent's or its subsidiaries' intellectual property, except through non-exclusive license agreements;
(vii) change its fiscal year;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent 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 (x) indebtedness incurred to effect a transaction disclosed on Schedule 4.1(b) of the Parent Disclosure Schedule, (y) indebtedness incurred or assumed in connection with one or more acquisition transactions permitted under Section 4.1(b)(iv), provided that indebtedness assumed in connection with any such transaction (as opposed to indebtedness incurred to effect any such transaction which will be counted solely against the limitations of Section 4.1(b)(iv)) shall not exceed the amount that would otherwise be permitted to be incurred pursuant to clause (z) below plus any remaining balance in the Parent Acquisition Basket, and (z) indebtedness which when added to existing indebtedness of Parent and its subsidiaries (other than indebtedness incurred pursuant to clause (x) and indebtedness incurred or assumed pursuant to clause (y) to the extent that such indebtedness reduces the available amount in the Parent Acquisition Basket) does not exceed in the aggregate $50 million, or (B) other than in the ordinary course of business consistent with past practice and within the limits specified in Section 4.1(b)(iv), make any loans, advances or capital contributions to, carry or investments in, any other person, other than to Parent or any direct or indirect wholly owned subsidiary of Parent;
(ix) purchase or acquire, or permit or cause any of its subsidiaries to purchase or acquire, beneficial or record ownership of any shares of Company Common Stock;
(x) make or agree to make any new capital expenditures (exclusive of expenditures set forth on its business Schedule 4.1(b)) for tangible physical assets which in the aggregate exceed $50 million;
(xi) except in the ordinary course of business consistent with past practice. In addition , modify, amend, renew, fail to and without limiting renew or terminate any material contract or agreement to which the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(b) of the Parent Disclosure Letter or as specifically required by this Agreement or Law, Parent shall not without the Company’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):
(i) (1) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for the payment by Parent of quarterly cash dividends on shares of Parent Common Stock with customary declaration, record and payment dates in accordance with Parent’s current dividend policy, or (2) split, combine, or reclassify any of its capital stock or other equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or other equity or voting interests;
(ii) purchase, redeem, or otherwise acquire any shares of capital stock or any other equity securities of Parent or any securities convertible into subsidiary is a party or exchangeable for such shares of capital stock waive, release or other equity securities or any options, warrants, calls, or rights to acquire any such shares or other equity securities, other than (1) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of Parent Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Parent Common Stock to satisfy tax obligations or the purchase price payable with respect to awards granted pursuant to Parent’s employee benefit plans, (3) the acquisition by Parent of shares subject to awards granted pursuant to Parent’s employee benefit plans in connection with the net settlement or forfeiture of such awards and (4) repurchases pursuant to Parent’s publicly disclosed stock buyback program in amounts not exceeding the amounts authorized by Parent’s Board of Directors as of the date hereof;
(iii) amend or otherwise change, or authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws in a manner that could reasonably be expected to adversely affect the consummation of the transactions contemplated by this Agreement or adversely affect in assign any material respect the rights of holders of the Parent Common Stock;
(iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than such transactions among wholly-owned Subsidiaries of Parent;
(v) except as required by GAAP, change its fiscal year, or make any material changes in financial accounting methods, principles, or practicesclaims; or
(vi) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Mergers set forth in Article VI not being satisfied by the Outside Date; or
(viixii) authorize any of, or commit, resolve commit or agree to take any of, the foregoing actions.
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